IN RE: Jerome BARNER (1998)

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, a prison inmate, was found guilty of violating the prison disciplinary rules that prohibit prisoners from possessing weapons and contraband.   The misbehavior report stated that a correction officer searched petitioner's cell and found a wooden awl with a steel point 5 1/212 inches long under petitioner's mattress.   The misbehavior report, which was signed by the two correction officers who witnessed the incident and described in detail the appearance of the weapon, the time and date of the incident and the location where the weapon was found, constituted substantial evidence of petitioner's guilt (see, Matter of Barranco v. Coughlin, 222 A.D.2d 904, 635 N.Y.S.2d 750;  Matter of Rouse v. Coughlin, 219 A.D.2d 858, 632 N.Y.S.2d 46, lv denied 87 N.Y.2d 806, 640 N.Y.S.2d 878, 663 N.E.2d 920).

 Furthermore, assuming without deciding that petitioner's contentions of procedural error are preserved for our review, we would find them to be lacking in merit.   The only question that petitioner asked his employee assistant was answered.   He waived his right to call any witnesses and never complained that his assistant was inadequate.   Even if petitioner asked for documentation as to whether the search of his cell was authorized and his assistant failed to retrieve this documentation, such failure would be irrelevant to the issue of whether petitioner was in possession of contraband (see, Matter of Di Rose v. Coombe, 233 A.D.2d 799, 800, 650 N.Y.S.2d 429;  Matter of Sweeter v. Coughlin, 221 A.D.2d 741, 633 N.Y.S.2d 649;  Matter of Tankleff v. Coughlin, 210 A.D.2d 815, 620 N.Y.S.2d 578).   The record also establishes that petitioner was in the gymnasium when the search was conducted and, because he was not removed from his cell, his presence during the search was not required (see, Matter of Perez v. Coombe, 232 A.D.2d 702, 648 N.Y.S.2d 178;  Matter of Scott v. Coughlin, 231 A.D.2d 727, 648 N.Y.S.2d 124).   Finally, the record is absent of any indication that the Hearing Officer was biased (see, Matter of Spencer v. Goord, 245 A.D.2d 827, 666 N.Y.S.2d 327, lv denied 91 N.Y.2d 811, 671 N.Y.S.2d 715, 694 N.E.2d 884).

Having reviewed petitioner's remaining contentions, we find them to be without merit.

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

MEMORANDUM DECISION.