Shabazz v. Coughlin , 622 N.Y.S.2d 389 ( 1995 )

—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 was found guilty after a Superintendent’s hearing of two counts of violating a rule prohibiting smuggling and two counts of violating a rule prohibiting possession of a controlled substance. On administrative review by respondent, this finding was modified by annulment of one count of smuggling and one count of possession of a controlled substance.

One misbehavior report, authored by a correction officer who was present for the events described, stated that he accompanied petitioner to the infirmary for a cavity search, and that petitioner subsequently produced an object that he had concealed on his person. A second misbehavior report was authored by the correction officer who tested the substance recovered and stated that the substance tested positive for marihuana. At the Superintendent’s hearing, petitioner admitted both charges at issue. Further, the test results showing a positive result for marihuana were introduced into evidence. We find that this evidence provides substantial evidence to support the findings of guilt. Further, any duplication of charges was remedied by respondent’s administrative modification of the determination. Given that the determination of guilt was not based upon confidential information but upon recovery of a prohibited substance after a search, petitioner’s argument as to the basis of such confidential information is irrelevant. We have examined petitioner’s other contentions and find them to be without merit.

Mercure, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.