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

IN RE: Shawn CORNWALL, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: July 26, 2001

Before:  MERCURE, J.P., CREW III, SPAIN, ROSE and LAHTINEN, JJ. Shawn Cornwall, Pine City, petitioner in person. Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.

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 which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of violating the prison disciplinary rule that prohibits possession of a weapon.   He challenges the determination of his guilt on the ground that it was not based on substantial evidence.   Contrary to petitioner's assertion, the detailed misbehavior report, which was authored by a correction officer who conducted a routine search of petitioner's cell and endorsed by a second correction officer who was present when a five-inch long sharpened temple-piece of an eyeglass frame was found secreted under the label of petitioner's mattress, provides substantial evidence to support petitioner's guilt (see, Matter of Francois v. Goord, 275 A.D.2d 852, 853, 713 N.Y.S.2d 230;  Matter of Cabral v. Great Meadow Correctional Facility, 261 A.D.2d 746, 691 N.Y.S.2d 587, lv dismissed 94 N.Y.2d 781, 700 N.Y.S.2d 418, 722 N.E.2d 497).   Although petitioner's cellmate expressed the opinion that petitioner had been “set up”, and petitioner denied any knowledge of the weapon, this testimony presented issues of credibility for resolution by the Hearing Officer (see, Matter of Emmons v. Selsky, 240 A.D.2d 786, 659 N.Y.S.2d 800;  Matter of Patterson v. Senkowski, 204 A.D.2d 831, 831-832, 612 N.Y.S.2d 84).   We have reviewed petitioner's remaining contentions and find them to be either unpreserved for our review or without merit.

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



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