Matter of Nieves v. Goord

• Decision Date: 24 December 2003
• Docket Number: 93866.
• Citation: 2 A.D.3d 1173,768 N.Y.S.2d 711,2003 NY Slip Op 19844
• Parties: In the Matter of ORLANDO NIEVES, Petitioner, v. GLENN S. GOORD, as Commissioner of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 1173

768 N.Y.S.2d 711

2003 NY Slip Op 19844

In the Matter of ORLANDO NIEVES, Petitioner, v. GLENN S. GOORD, as Commissioner of Correctional Services, Respondent.

93866.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 24, 2003.

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^* 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.

* 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.