IN RE: Dwayne JENKINS (1997)

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.

 Petitioner was found guilty of violating the prison disciplinary rules prohibiting unhygienic acts and possession of contraband after five milk cartons containing feces and urine were found in his cell during a routine cell frisk.   The detailed misbehavior report written by the correction officer who conducted the cell frisk was sufficiently relevant and probative to support the determination of petitioner's guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   Although not tested or presented at the hearing, we find that the Hearing Officer could reasonably rely upon the correction officers' identification of the substances contained in the milk cartons through their appearance and odor (see generally, Matter of Cornish v. Coughlin, 122 A.D.2d 495, 496, 505 N.Y.S.2d 255 [correction officer's observations sufficient to sustain determination] ).   Petitioner's contention that the substance was food merely created a credibility determination for the Hearing Officer to resolve (see, Matter of Wood v. Selsky, 237 A.D.2d 843, 844, 655 N.Y.S.2d 181, 182).   Finally, contrary to petitioner's assertion, we find that sanctions were properly imposed (see, Matter of Coleman v. Kelly, 72 N.Y.2d 850, 851-852, 532 N.Y.S.2d 92, 527 N.E.2d 1228).   Petitioner's remaining contentions have been reviewed and found to be unpersuasive.

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

MEMORANDUM DECISION.