Bonilla v. Coombe

221 A.D.2d 782, 633 N.Y.S.2d 668, 1995 N.Y. App. Div. LEXIS 11770

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1995
• 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

After taking a urinalysis test which produced a positive result for the presence of opiates, petitioner, a prison inmate, was charged with, and subsequently found guilty of, violating a prison disciplinary rule prohibiting inmates from using controlled substances. Petitioner contends that the positive test result was attributable to his consumption of cheeseburgers with poppy seed buns at around the time the test was conducted. He argues that he was deprived of due process because the Hearing Officer refused his request to call as a witness a representative of the company which manufactured the testing equipment and that the administrative determination is not supported by substantial evidence in the record.

Initially, inasmuch as petitioner failed to raise this issue upon administrative appeal, petitioner has failed to preserve the issue for review. Upon review of the record, we find that the misbehavior report, the urinalysis test result and the testimony of the correction officer who conducted the test provide substantial evidence supporting respondent’s determination. We have considered petitioner’s remaining arguments and find them to be without merit.

Cardona, P. J., Mikoll, Crew III, White and Yesawich Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.