Charles v. Selsky

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit altering an authorized item and possession of a weapon. According to the misbehavior report, a metal nail file imbedded in a pen and sticking out about three quarters of an inch was found in *862petitioner’s locker. The fact that the contraband was found in an area within petitioner’s control gives rise to an inference that the weapon belonged to him (see Matter of Johnson v Goord, 7 AD3d 901 [2004]; Matter of Alston v Goord, 4 AD3d 708, 709 [2004]). This inference, together with the misbehavior report, picture of the altered pen and testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Cummings v Goord, 10 AD3d 748 [2004]; Matter of Davis v Senkowski, 306 AD2d 778 [2003]). Petitioner’s contention that the pen did not belong to him presented a credibility issue for the Hearing Officer to resolve (see Matter of Cummings v Goord, supra).

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.