IN RE: Cory COSTNER (2006)

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 which found petitioner guilty of violating certain prison disciplinary rules.

Acting upon confidential information, a correction officer searched petitioner's cell, recovered his state-issued jacket and discovered a substance that tested positive for marihuana, as well as matches and rolling papers, secreted in the lining.   As a result, he was charged in a misbehavior report with possessing a controlled substance and destroying state property.   Petitioner was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, the testimony of the correction sergeant who ordered the search and the drug test documentation constitute substantial evidence supporting the determination of guilt (see Matter of Davila v. Selsky, 305 A.D.2d 953, 953, 759 N.Y.S.2d 404 [2003];  Matter of Smith v. Selsky, 294 A.D.2d 629, 630, 742 N.Y.S.2d 677 [2002] ).   Notwithstanding the fact that another inmate had access to petitioner's cell, an inference of possession arises by virtue of petitioner's control over the area where the jacket was found (see Matter of Nieves v. Goord, 2 A.D.3d 1173, 1174, 768 N.Y.S.2d 711 [2003] ).   Petitioner's defense that the marihuana was planted in his jacket by another inmate in return for the dismissal of disciplinary charges presented a credibility issue for the Hearing Officer to resolve (see Matter of Brown v. Senkowski, 290 A.D.2d 906, 907, 736 N.Y.S.2d 638 [2002] ) and was contested by the Hearing Officer who was personally involved in the dismissal of the charges.   Petitioner's remaining contentions have either not been preserved for our review or are lacking in merit.

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