Anderson v. Prack

111 A.D.3d 1214, 975 N.Y.S.2d 706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 2013
• Status: Published

Opinion

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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. Following a tier III disciplinary hearing, petitioner was found guilty, and the determination was affirmed on administrative review. This CPLR article 78 proceeding ensued.

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We confirm. Contrary to petitioner’s contention, he was not deprived of a fair hearing, inasmuch as the Hearing Officer’s denial of his request for the training manual and other information from the manufacturer regarding the cleaning, maintenance and testing procedures of the SYVA/Emit Jr. urinalysis machine was not a denial of petitioner’s due process rights (see Matter of Harrison v Fischer, 56 AD3d 917, 917-918 [2008]; Matter of Davis v Goord, 268 AD2d 932, 932 [2000], lv denied 95 NY2d 751 [2000]; Matter of Kussius v Walker, 247 AD2d 911, 912 [1998]).

Lahtinen, J.E, Stein, Spain and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although petitioner raised a substantial evidence question in his petition, that issue has been abandoned inasmuch as he failed to raise it in his brief (see Matter of Land v Fischer, 100 AD3d 1170, 1170 n [2012]).