IN RE: Jose FONG (2007)

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 certain prison disciplinary rules.

Approximately three weeks after petitioner was moved into a double-bunk cell that was occupied by another inmate, a correction officer found a sharpened metal door-latch plate secreted underneath the toilet.   Petitioner was then charged in a misbehavior report with possessing a weapon, possessing unauthorized contraband and damaging state property.   Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was thereafter affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   A strong inference of possession arises with respect to items found within an inmate's cell even if the inmate does not have exclusive control over the area in question (see Matter of Tarbell v. Goord, 263 A.D.2d 563, 564, 693 N.Y.S.2d 262 [1999];  Matter of Fernandez v. Stinson, 251 A.D.2d 887, 888, 675 N.Y.S.2d 911 [1998] ).   Given the evidence that the weapon had been very recently sharpened, petitioner's assertions that he had been in the cell for only three weeks and that the cell had been only cursorily searched before he moved into it are insufficient to negate the inference of possession.   Inasmuch as the determination is supported by substantial evidence, it must be confirmed (see Matter of Colon v. Goord, 274 A.D.2d 732, 732, 710 N.Y.S.2d 716 [2000];  Matter of Tarbell v. Goord, supra at 564, 693 N.Y.S.2d 262;  cf. Matter of Ganz v. Selsky, 34 A.D.3d 879, 880, 823 N.Y.S.2d 582 [2006] ).

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