IN RE: Shawn THOMAS

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Shawn THOMAS, Petitioner, v. Glenn GOORD, as Commissioner of Correctional Services, et al., Respondents.

Decided: June 21, 2001

Before:  CARDONA, P.J., MERCURE, CREW III, PETERS and SPAIN, JJ. Shawn Thomas, Malone, petitioner in person. Eliot Spitzer, Attorney General (Peter H. Schiff of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

 Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting the possession of gang-related material after a search of petitioner's cell uncovered the material hidden underneath petitioner's mattress.   Contrary to petitioner's assertion, substantial evidence supports the determination of guilt (see, Matter of De La Rosa v. Goord, 260 A.D.2d 824, 688 N.Y.S.2d 750;  Matter of Battiste v. Goord, 255 A.D.2d 941, 681 N.Y.S.2d 924).   Although the confiscated material was not read into the record, it was adequately described in the misbehavior report and was made part of the record.

 To the extent that petitioner claims that the misbehavior report was defective because it was not endorsed by all correction officers present during the cell search, petitioner has demonstrated no prejudice as a result of the omission (see, Matter of West v. Costello, 270 A.D.2d 673, 674, 705 N.Y.S.2d 417).   Furthermore, we reject petitioner's assertion that the cell search was not conducted in accordance with Department of Correctional Services directives inasmuch as there is no requirement in the directives pertaining to searches of either special housing units or the general inmate population that a sergeant be present during a cell search or that a supervisor endorse the cell search form.   Although there was no log book entry of the search, the results were sufficiently recorded in the misbehavior report and cell search inspection notice (see, Matter of Roman v. Selsky, 270 A.D.2d 519, 520, 705 N.Y.S.2d 88).

We have examined petitioner's remaining contentions, including his claim of Hearing Officer bias, and find them to be without merit.

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

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