IN RE: Byron FUGATE (2000)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule which prohibits the possession of a weapon after a search of his cell revealed a 6 1/212-inch metal shank in a box labeled Domeboro found hidden behind a locker.   The record reveals that petitioner had been issued the Domeboro medication three months earlier.   The fact that petitioner did not have exclusive control over the area where the weapon was found is insufficient to defeat the inference of impropriety (see, Matter of Mendez v. Jones, 176 A.D.2d 423, 574 N.Y.S.2d 412).   Significantly, petitioner's cellmate had only been in the custody of the Department of Correctional Services for two weeks. Furthermore, petitioner testified that his friendship with a homosexual inmate had caused a rift with other inmate friends.   Given this evidence and the inferences to be drawn therefrom, substantial evidence supports the finding that petitioner was in possession of the weapon (see, Matter of Tarbell v. Goord, 263 A.D.2d 563, 693 N.Y.S.2d 262;  Matter of Scott v. Coombe, 238 A.D.2d 648, 656 N.Y.S.2d 953).   Petitioner's remaining contentions have been reviewed and found to be without merit.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

MEMORANDUM DECISION.