IN RE: Thomas KENNEDY

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

IN RE: Thomas KENNEDY, Petitioner, v. Philip COOMBE, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: February 20, 1997

Before MIKOLL, J.P., and MERCURE, WHITE, YESAWICH and PETERS, JJ. Thomas Kennedy, Dannemora, in person. Dennis C. Vacco, Attorney General (Martin A. Hotvet, of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton 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 that prohibit possession of escape paraphernalia and unauthorized possession of tools.   Petitioner challenges the determination of his guilt on the ground that it was not based upon substantial evidence.   We disagree.   Presented in evidence at petitioner's disciplinary hearing was a detailed misbehavior report together with the testimony of the correction officer who had found five hacksaw blades secreted in a leg of petitioner's bed.   The blades themselves were also admitted in evidence.   We conclude that there was substantial evidence supporting the determination of petitioner's guilt (see, Matter of Torres v. Coughlin, 213 A.D.2d 861, 624 N.Y.S.2d 67).   Petitioner's assertion that he had no knowledge of the presence of the blades concealed in his cell was insufficient to defeat the inference of possession that arises whenever a weapon is found in an area under an inmate's control (see, Matter of Price v. Coughlin, 195 A.D.2d 995, 600 N.Y.S.2d 408).   His testimony in this regard raised issues of credibility which were within the province of the Hearing Officer to resolve (see, Matter of Patterson v. Senkowski, 204 A.D.2d 831, 832, 612 N.Y.S.2d 84).   Petitioner's remaining contentions have been considered and found to be unpersuasive.

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

MEMORANDUM DECISION.

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