GAUTHIER v. GOORD (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Michael GAUTHIER, Petitioner, v. Glenn S. GOORD, Commissioner, New York State Department of Correctional Services, Respondent.

Decided: November 12, 1999

PRESENT: PINE, J.P., WISNER, PIGOTT, JR., HURLBUTT and SCUDDER, JJ.

Edward L. Chassin, Attica, for Petitioner. Lew A. Millenbach, Albany, for Respondent.

The misbehavior report, augmented by the testimony of two correction officers, constitutes substantial evidence to support the determination that petitioner violated inmate rule 113.10 (7 NYCRR 270.2[B] [14][i] [possession of a weapon] ) (see, Matter of Bryant v. Coughlin, 77 N.Y.2d 642, 647, 569 N.Y.S.2d 582, 572 N.E.2d 23; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997). Although the shank was found outside petitioner's cell window, it was attached to a piece of dental floss that was secured to petitioner's window by a paper clip. It was attached to the window in such a manner that other inmates could not have reached it (see, Matter of Cowart v. Coughlin, 194 A.D.2d 1036, 599 N.Y.S.2d 677). The contention of petitioner that he had no knowledge of the weapon presented an issue of credibility for the Hearing Officer to resolve (see, Matter of Hawkins v. Coombe, 225 A.D.2d 1095, 1096, 639 N.Y.S.2d 634).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM:

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