Opinion
May 25, 1989
Appeal from the Supreme Court, Clinton County.
Petitioner, an inmate at Clinton Correctional Facility in Clinton County, was charged with violating prison disciplinary rules prohibiting gambling ( 7 NYCRR 270.1 [b] [21]), possession of contraband ( 7 NYCRR 270.1 [b] [14] [xiii]) and possession of a weapon ( 7 NYCRR 270.1 [b] [14] [ii]). A misbehavior report dated October 22, 1986 authored by a correction officer stated that while packing petitioner's personal belongings in his cell on that date, he "found 1 gambling (betting) slip written in Spanish * * * 1 martil [sic] arts slip with a list of punches, kicks etc. * * * on it, and 1 plastic sharpened rod with handle". The cell search occurred while petitioner was at the hospital for treatment of his leg fractured during football practice the previous day. The items described were found underneath a blanket folded at the foot of the bed. Following a Tier III Superintendent's hearing at which the misbehavior report and a photograph of the weapon were admitted in evidence, and both the correction officer who authored the misbehavior report and petitioner testified, petitioner was found not guilty of the gambling charge because of insufficient evidence, but guilty of possession of a weapon and possession of contraband charges. Petitioner denied knowledge of or control over the items, contending they could have been placed in his cell by unknown persons during his absence. This CPLR article 78 proceeding was commenced to annul the determination on the grounds that it was not supported by substantial evidence and was obtained in violation of petitioner's due process rights.
Substantial evidence "`means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'" (People ex rel. Vega v Smith, 66 N.Y.2d 130, 139, quoting 300 Grammatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176, 180). A misbehavior report authored by an eyewitness with direct knowledge of the information, and which contains a description of the event and a photograph of a weapon, has been held sufficient to constitute substantial evidence (Matter of Siders v LeFevre, 145 A.D.2d 874; see, People ex rel. Vega v Smith, supra, at 140; Matter of Felder v Jones, 111 A.D.2d 472). Petitioner's reliance upon Matter of Sanchez v Coughlin ( 132 A.D.2d 896) and Matter of Trudo v LeFevre ( 122 A.D.2d 319) is misplaced. In those factually distinguishable cases, this court refused to hold inmates responsible for contraband found in locations outside their control, absent any evidence linking the petitioners with the contraband. However, when, as in this case, contraband is found within a petitioner's cell, a "virtually irresistible inference of inmate impropriety" can arise (Matter of Sanchez v Coughlin, supra, at 898; see, Matter of Medina v Coughlin, 132 A.D.2d 982, lv denied 70 N.Y.2d 711; Matter of Torres v Scully, 127 A.D.2d 837).
Petitioner's contention that he never possessed the weapon could be rejected by the Hearing Officer and the testimony of the correction officer accepted. It is within the exclusive province of the Hearing Officer to pass upon issues of credibility (People v Nolasco, 142 A.D.2d 785).
Finally, we find without merit petitioner's contention that his due process rights were violated.
Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Weiss, Levine, Mercure and Harvey, JJ., concur.