IN RE: George LOPEZ (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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Based upon an anonymous tip, petitioner's dormitory cube was searched, uncovering a tattooing machine hidden behind petitioner's locker and three unmarked plastic bottles directly under his bed which contained numerous unidentified pills.   Petitioner was charged in a misbehavior report with possession of contraband, possession of unauthorized medication and possession of a tattoo machine.   Following a disciplinary hearing, petitioner was found guilty of possession of contraband and possession of a tattoo machine and not guilty of possession of unauthorized medication.   The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Contrary to petitioner's contention, the misbehavior report and corroborating testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Cummings v. Goord, 10 A.D.3d 748, 749, 781 N.Y.S.2d 708 [2004] ).   Although petitioner did not have exclusive access to the area where the contraband items were found, a reasonable inference of possession arises from the fact that the contraband, found behind his locker and under his bed, were located in an area within his control (see id. at 749, 781 N.Y.S.2d 708;  Matter of Jackson v. Selsky, 288 A.D.2d 802, 733 N.Y.S.2d 527 [2001], lv. denied 97 N.Y.2d 612, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002];  Matter of Stile v. Goord, 285 A.D.2d 693, 727 N.Y.S.2d 736 [2001] ).   Furthermore, petitioner's assertion that he had no knowledge that the items were there, as well as any alleged inconsistencies between the information in the misbehavior report and the author's testimony at the hearing, presented credibility issues for the Hearing Officer to resolve (see Matter of Vasile v. Selsky, 20 A.D.3d 828, 798 N.Y.S.2d 699 [2005];  Matter of Mitchell v. Goord, 266 A.D.2d 614, 697 N.Y.S.2d 753 [1999] ).   Finally, inasmuch as petitioner was found not guilty of possession of unauthorized medication, and having not been charged with drug possession or use, petitioner's challenge to the testing procedure used to identify the pills confiscated during the search is of no moment.

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