| Matter of Scott v Fischer |
| 2010 NY Slip Op 06202 [75 AD3d 962] |
| July 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Mark Scott, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
While a correction officer was conducting a pat frisk of petitioner, petitioner appeared toswallow a foreign object that had been secreted in his mouth. Petitioner was escorted to thehospital where an X ray revealed that he had, in his stomach, a razor blade wrapped in some typeof material. Petitioner was placed on a contraband watch for the next few days but no razor bladeor similar object was found. Petitioner was charged in a misbehavior report with possessing aweapon, possessing contraband, violating search and frisk procedures and possessing gangmaterial. He was found not guilty of possessing gang material but guilty of the other charges andthe determination was later affirmed on administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The X ray taken at the hospital, the misbehavior report, the testimony of thecorrection officer who authored it, the testimony of the lieutenant who ordered the pat frisk, thetestimony of the sergeant who was present at the pat frisk and the testimony of the nurse who[*2]reviewed the X ray provide substantial evidence supportingthe determination. Because an X ray taken two days after the X ray taken at the hospital did notshow the object and no contraband was recovered as a result of the contraband watch, petitionercontends that the determination is not supported by substantial evidence (see Matter of Warren v Goord, 49AD3d 1099, 1100 [2008]). In Warren, unlike here, the Hearing Officer disregardedthe X-ray evidence and the testimony of the doctor who interpreted it. And, although thesubsequent X ray and results of the contraband watch may have supported a differentdetermination, we find the determination of guilt to be properly supported by substantialevidence (see Matter of Gee vGoord, 21 AD3d 636, 637 [2005]).
Petitioner's remaining contentions have been considered and found to be unavailing.
Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.