Beckles v. Selsky

273 A.D.2d 584, 710 N.Y.S.2d 552

Opinion

Graffeo, J.

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 Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule prohibiting inmates from using controlled substances after his urine twice tested positive for the presence of cannabinoids. This proceeding seeks annulment of the determination of his guilt based on various alleged procedural errors.

Footnotes

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Contrary to petitioner’s assertion, we do not find that he was improperly denied the right to call various witnesses inasmuch as the record supports the Hearing Officer’s conclusion that their testimony would be irrelevant to the controlled substance charge (see, Matter of Williams v Goord, 270 AD2d 744; Matter of Fletcher v Murphy, 249 AD2d 638).

Next, petitioner’s contention that an inadequate evidentiary foundation was laid for the introduction of the urinalysis test results is unpreserved for our review, having been raised for the first time in his brief before this Court (see, Matter of Johnson v Goord, 260 AD2d 816; Matter of Stanislas v Senkowski, 253 AD2d 972). In any event, were we to consider the merits, we would find that such claim is belied by the record which indicates that the requirements of 7 NYCRR 1020.5 (a) (1) were reasonably complied with (see, Matter of Hein v Goord, 249 AD2d 661; Matter of Frazier v Coombe, 224 AD2d 794).

The record further provides ample evidence to support the Hearing Officer’s decision to remove petitioner from the hearing once he became disruptive, argumentative and uncooperative (see, Matter of Dumpson v McGinnis, 247 AD2d 804; Matter of Joyce v Goord, 246 AD2d 926). Finally, petitioner’s claim of Hearing Officer bias, to the extent preserved for our review, has been examined and found to be without merit.

Crew III, J. P., Spain, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Supreme Court improperly transferred the proceeding on substantial evidence grounds inasmuch as petitioner raises solely procedural issues in the petition (see, Matter of Barnhill v Coombe, 239 AD2d 719, 720, n). Nevertheless, we shall retain jurisdiction and review the merits in the interest of judicial economy (see, Matter of Nieves v Goord, 262 AD2d 1042).