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Matter of Ebanks v. Goord

Appellate Division of the Supreme Court of New York, Third Department
Jul 1, 1999
263 A.D.2d 588 (N.Y. App. Div. 1999)

Opinion

July 1, 1999

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 a prison disciplinary rule.

James Ebanks, Malone, petitioner in person.

Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

Before: MIKOLL, J.P., MERCURE, CREW III, PETERS and SPAIN, JJ.


MEMORANDUM AND JUDGMENT

Petitioner was found guilty of violating the prison disciplinary rule that prohibit inmates from possessing weapons after a search of his cell uncovered a razor-type weapon with a taped handle in petitioner's bed post. Although petitioner denied that the weapon was his, an inference of possession arises that the weapon was his inasmuch as it was found within a cell that petitioner had occupied for five weeks (see, Matter of Caraway v. Walker, 247 A.D.2d 675; Matter of Mitchell v. Coombe, 238 A.D.2d 648). This inference, together with the misbehavior report, provides substantial evidence to support the determination of guilt (see,Matter of Caraway v. Walker, supra). Petitioner's remaining contention, that there was no log to indicate that his cell was searched prior to him moving in, has not been preserved for our review as petitioner failed to request a copy of the search log during the hearing (see, Matter of Marino v. Coombe, 231 A.D.2d 788,lv denied 89 N.Y.2d 804).

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


Summaries of

Matter of Ebanks v. Goord

Appellate Division of the Supreme Court of New York, Third Department
Jul 1, 1999
263 A.D.2d 588 (N.Y. App. Div. 1999)
Case details for

Matter of Ebanks v. Goord

Case Details

Full title:In the Matter of JAMES EBANKS, Petitioner, v. GLENN S. GOORD, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 1, 1999

Citations

263 A.D.2d 588 (N.Y. App. Div. 1999)
693 N.Y.S.2d 675

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