Matter of Orlando Nieves v Glenn S. Goord

Matter of Nieves v Goord 2003 NY Slip Op 19844 [2 AD3d 1173] December 24, 2003 Appellate Division, Third Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of Orlando Nieves, Petitioner,
v
Glenn S. Goord, as Commissioner of Correctional Services, 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 certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rules that prohibit the unauthorized possession of money and possession of drugs. The charges stem from the discovery of $160, cocaine and heroin hidden inside a pilaster[FN*] which was accessible from inside petitioner's cell. Notwithstanding the fact that other inmates had access to the area where the contraband was found, the fact that the contraband was found in an area within petitioner's control gives rise to a reasonable inference of possession (see Matter of Johnson v Racette, 282 AD2d 899 [2001]; Matter of Fernandez v Stinson, 251 AD2d 887 [1998]). This inference, together with the misbehavior report and supporting documentation, provides substantial evidence to support the determination of guilt (see Matter of Fugate v Goord, 277 AD2d 626 [2000]). Furthermore, our review of the record fails to support petitioner's claim of hearing officer bias or that the outcome of the hearing flowed from any alleged bias (see Matter of Thomas v Selsky, 256 AD2d 712 [1998]). Petitioner's remaining contention, that he was denied the right to observe the search of his cell, has been reviewed and found to be without merit.

Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed. Footnotes

Footnote *: A pilaster is a column-type framework that houses the cell's gate or locking mechanism, which, although outside the cell, is accessible from within the cell.