
    In the Matter of William Hoyer, Petitioner, v Philip Coombe, as Acting Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    [638 NYS2d 514]
   —Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of possessing escape items and exchanging unauthorized items after correetion officers confiscated a life-sized, wooden monkey head and other items, including unfinished imitation body parts, from his cell. As a penalty, he was given 365 days confinement in the Special Housing Unit and the loss of certain privileges. Petitioner challenges this determination, contending, inter alia, that it is not supported by substantial evidence. Initially, inasmuch as respondents concede that the unauthorized exchange charge should be annulled and expunged from petitioner’s records, we find that the determination must be modified in this regard. Nevertheless, with respect to the possession of escape items charge, we find that the misbehavior report, combined with the testimony of the correction officer who prepared it and the testimony of petitioner, provide substantial evidence supporting the determination of guilt. Finally, contrary to petitioner’s claim, we do not find that the penalty imposed was excessive.

Cardona, P. J., Mercure, Crew III, Casey and Spain, JJ., concur. Adjudged that the determination is modified and petition granted, in part, by reversing so much thereof as found petitioner guilty of exchanging unauthorized items, and, as so modified, confirmed, without costs.  