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

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

Decided: October 25, 2001

Before CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Tom Cruise, Dannemora, petitioner pro se. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

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 a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting inmates from possessing escape paraphernalia, to wit, a homemade handcuff key.   Although the key was never found, the misbehavior report relates that, following a confidential tip, petitioner was questioned by correction officers and he admitted that he had a handcuff key in his cell, hidden under the rim of his toilet.   When correction officers could not locate the key, petitioner asserted that he must have inadvertently flushed it.   A hearing was thereafter held at which petitioner pleaded not guilty.   Although he acknowledged that he had made the aforementioned admissions to the correction officers, he contended that he only did so because he did not want to be confined to a special housing unit.   We find that the misbehavior report, together with the testimony adduced at the hearing including the confidential testimony, constitute substantial evidence to support the determination of guilt (see, Matter of Roman v. Goord, 272 A.D.2d 695, 708 N.Y.S.2d 904;  Matter of Prout v. Hurburt, 267 A.D.2d 691, 700 N.Y.S.2d 405).   Petitioner's remaining arguments have been examined and found to be either unpreserved for our review or lacking in merit.

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

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