Boatwright v. McGinnis

Appellate Division of the Supreme Court of New York

Boatwright v. McGinnis

24 A.D.3d 1136, 807 N.Y.S.2d 189

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 2005

StatusPublished

Cited by8 cases

This text of 24 A.D.3d 1136 (Boatwright v. McGinnis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boatwright v. McGinnis, 24 A.D.3d 1136, 807 N.Y.S.2d 189 (N.Y. Ct. App. 2005).

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Opinion

Appeal from a judgment of the Supreme Court (O’Brien, III, J.), entered February 25, 2005 in Chemung County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review [1137]*1137a determination of respondent Commissioner of Correctional Services finding 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. He was found guilty of the charge following a tier III disciplinary hearing. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding raising various procedural issues. Following joinder of issue, Supreme Court dismissed-the petition and this appeal ensued.

Initially, by failing to object at the hearing to the adequacy of the foundation for the urinalysis test results or the sufficiency of the misbehavior report, petitioner has failed to preserve these claims for our review (see Matter of Odome v Goord, 8 AD3d 921, 922 [2004]; see also Matter of Beckles v Selsky, 273 AD2d 584, 585 [2000], lv denied 95 NY2d 764 [2000]). Furthermore, his claim that the Hearing Officer did not conduct the hearing in a fair and impartial manner is not substantiated by the record as there is nothing to indicate that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Davis v Girdich, 20 AD3d 788, 789 [2005], lv denied 5 NY3d 715 [2005]; Matter of Porter v Mc-Ginnis, 20 AD3d 641, 641 [2005]). We have considered petitioner’s remaining contentions and find no basis for disturbing the judgment dismissing the proceeding.

Cardona, P.J., Mercure, Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (O’Brien, III, J.), entered February 25, 2005 in Chemung County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review [1137]*1137a determination of respondent Commissioner of Correctional Services finding 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. He was found guilty of the charge following a tier III disciplinary hearing. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding raising various procedural issues. Following joinder of issue, Supreme Court dismissed-the petition and this appeal ensued.

Initially, by failing to object at the hearing to the adequacy of the foundation for the urinalysis test results or the sufficiency of the misbehavior report, petitioner has failed to preserve these claims for our review (see Matter of Odome v Goord, 8 AD3d 921, 922 [2004]; see also Matter of Beckles v Selsky, 273 AD2d 584, 585 [2000], lv denied 95 NY2d 764 [2000]). Furthermore, his claim that the Hearing Officer did not conduct the hearing in a fair and impartial manner is not substantiated by the record as there is nothing to indicate that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Davis v Girdich, 20 AD3d 788, 789 [2005], lv denied 5 NY3d 715 [2005]; Matter of Porter v Mc-Ginnis, 20 AD3d 641, 641 [2005]). We have considered petitioner’s remaining contentions and find no basis for disturbing the judgment dismissing the proceeding.

Cardona, P.J., Mercure, Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

24 A.D.3d 1136, 807 N.Y.S.2d 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boatwright-v-mcginnis-nyappdiv-2005.

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