IN RE: Nelson FRANCOIS (2000)

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

 Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rules that prohibit possession of a controlled substance ¹ and possession of a weapon.   Contrary to petitioner's assertion, the misbehavior report, written by the correction officer who discovered two handmade weapons secreted in petitioner's mattress during a cell search, provides substantial evidence to support petitioner's guilt with respect to the weapons charge (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Thomas v. Bennett, 271 A.D.2d 768, 705 N.Y.S.2d 445).   Under the circumstances of this case, we are of the view that because the weapons were found in petitioner's mattress, there is sufficient evidence to give rise to an inference of petitioner's possession of the weapons, notwithstanding that he had been assigned to that cell for only nine days (see, Matter of Torres v. Coughlin, 213 A.D.2d 861, 624 N.Y.S.2d 67;  cf., Matter of Varela v. Coughlin, 203 A.D.2d 630, 610 N.Y.S.2d 103).

 Furthermore, we find no prejudice to petitioner resulting from the short delay in completing his administrative review (see, Matter of Davis v. Bennett, 256 A.D.2d 791, 681 N.Y.S.2d 812).   Finally, even if preserved for our review, we would find petitioner's remaining contentions, including his claim of Hearing Officer bias, to be without merit.

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

FOOTNOTES

1.   Petitioner pleaded guilty to the charge of possession of a controlled substance.

MEMORANDUM DECISION.