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Petition Dismissed Based on Support From Substantial Evidence
In the Matter of Mark Scott v Brian Fischer, as Commissioner of Correctional Services, et al.
In this Article 78 case, petitioner sought review of respondent’s conclusion which found petitioner guilty of violating certain prison disciplinary rules.
During a pat frisk of petitioner by a correction officer, petitioner seemed to have swallowed a foreign object that he was hiding in his mouth. He was, then, escorted to the hospital for an x-ray.
The x-ray revealed a razor blade wrapped in some type of material in his stomach. For the next few days, petitioner was placed on a contraband watch, but no razor blade turned up. In a misbehavior report, petitioner was charged with the following: (1) possessing a weapon, (2) possessing contraband, (3) violating search and frisk procedures and (4) possessing gang material. However, he was found of everything but of possessing gang material.
The determination was supported by the following substantial evidence: x-ray taken at the hospital, the misbehavior report, the testimony of the correction officer who authorized it, the testimony of the lieutenant who ordered the pat frisk, the testimony of the sergeant who was present at the pat frisk and the testimony of the nurse who reviewed the x-ray.
Petitioner, however, states that the determination is not supported by substantial evidence because the x-ray taken two days after the incident did not show any object in the petitioner’s stomach, nor was any contraband recovered.
The courts determination was confirmed, without costs, and petition was dismissed.
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