Opinion
July 16, 1993
Appeal from the Supreme Court, Jefferson County, Gilbert, J.
Present — Green, J.P., Pine, Lawton, Boomer and Boehm, JJ.
Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: Because petitioner's article 78 proceeding raised a substantial evidence question, it should have been transferred to this Court (see, CPLR 7804 [g]; Matter of Benesch v. Village of Clayton, 185 A.D.2d 688, lv denied 81 N.Y.2d 702, rearg denied 81 N.Y.2d 912). We consider the matter as if it had been properly transferred.
Petitioner was found guilty of possessing a shank found underneath his locker. He argues that the determination was not supported by substantial evidence because his locker was in an open area accessible to all of the other inmates in the unit. The Hearing Officer's disbelief of petitioner's denial of the charge cannot constitute affirmative evidence of guilt. The only proof presented was that the shank was found underneath petitioner's locker; whether there was substantial evidence depends on the strength of the inference of possession drawn from that proof. We conclude that the determination was supported by substantial evidence because petitioner had substantial control over the area where the shank was found, despite the fact that his access was not exclusive (see, Matter of Caldwell v. Coughlin, 148 A.D.2d 905; cf., Matter of Sanchez v. Coughlin, 132 A.D.2d 896; Matter of Trudo v. LeFevre, 122 A.D.2d 319). There is no merit to petitioner's contention that the Commissioner, in affirming the Superintendent's hearing, violated his rights by failing first to summarize the evidence. Petitioner failed to exhaust his administrative remedies with respect to the remainder of his arguments (see, Matter of Nelson v. Coughlin, 188 A.D.2d 1071).