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In the Matter of JOSE LOPEZ, Petitioner, v. DONALD SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

MEMORANDUM AND JUDGMENT

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits possession of a weapon after a seven-inch shank was found hidden in petitioner's mattress. The detailed misbehavior report relating that the weapon was found in petitioner's mattress during a scheduled cell search provides substantial evidence to support the determination of guilt (see Matter of Rocha v. Goord, 284 A.D.2d 759). Petitioner's assertion that the weapon was planted in his cell in retaliation for a previous disciplinary incident and his subsequent complaints to facility officials regarding harassment by correction officers presented a credibility issue for the Hearing Officer to resolve (see Matter of Nijman v. Goord, 294 A.D.2d 737). Finally, we reject petitioner's contention that he was improperly excluded from viewing the search of his cell. Petitioner was at recreation when the search was conducted and, because he was not removed from his cell, it was not required that he be present during the search (see Matter of Perkins v. Goord, 290 A.D.2d 700).

Crew III, J.P., Peters, Spain, Rose and Kane, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

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LOPEZ v. SELSKY
(Dec 26, 2002)