IN RE: Jose VASQUEZ

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

IN RE: Jose VASQUEZ, Petitioner, v. Glenn S. GOORD, as Commissioner of New York State Department of Correctional Services, et al., Respondents.

Decided: July 22, 1999

Before:  CARDONA, P.J., MIKOLL, MERCURE, PETERS and GRAFFEO, JJ. Jose Vasquez, Malone, petitioner in person. Eliot Spitzer, Attorney-General (Marcus J. Mastracco 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.

After conducting a search of petitioner's cell, correction officers found two weapons secreted in the baseboard behind the radiator.   Following a tier III hearing, petitioner was found guilty of violating a prison disciplinary rule prohibiting inmates from possessing weapons.   In our view, the detailed misbehavior report provides substantial evidence supporting the determination of petitioner's guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Cabral v. Great Meadow Correctional Facility, 261 A.D.2d 746, 691 N.Y.S.2d 587;  Jay v. Coombe, 233 A.D.2d 661, 662, 649 N.Y.S.2d 831).   Although petitioner denies that the weapons were his and asserts that his cellmate had access to the area in which the weapons were found, this is insufficient to defeat the inference of possession by petitioner under these circumstances (see, Matter of Fernandez v. Stinson, 251 A.D.2d 887, 888, 675 N.Y.S.2d 911;  see also, Matter of Cabral v. Great Meadow Correctional Facility, supra;  cf., Matter of Varela v. Coughlin, 203 A.D.2d 630, 610 N.Y.S.2d 103).   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

CARDONA, P.J.

MIKOLL, MERCURE, PETERS and GRAFFEO, JJ., concur.

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