Caviano v. Stinson

Appellate Division of the Supreme Court of New York

Caviano v. Stinson

209 A.D.2d 807, 618 N.Y.S.2d 602, 1994 N.Y. App. Div. LEXIS 11076

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

DecidedNovember 10, 1994

StatusPublished

Cited by1 cases

This text of 209 A.D.2d 807 (Caviano v. Stinson) 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

Caviano v. Stinson, 209 A.D.2d 807, 618 N.Y.S.2d 602, 1994 N.Y. App. Div. LEXIS 11076 (N.Y. Ct. App. 1994).

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Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Contrary to petitioner’s assertions, his disciplinary hearing was commenced within seven days of his being confined to his cell as mandated by 7 NYCRR 251-5.1 (a). The period of his hospitalization is not considered as part of the period of confinement. In addition, the hearing was also conducted within 14 days of the writing of the misbehavior report and therefore the requirements of 7 NYCRR 251-5.1 (b) were also satisfied. As to petitioner’s claim that the chain of custody for his blood sample was flawed, he has failed to meet his burden on this issue insofar as he offered nothing more than mere speculation to support his assertions. In any event, at the hearing he specifically stated that he was not contesting the validity of the test results. Petitioner’s remaining arguments concerning the blood test were waived by his failure to raise them at the hearing.

Mikoll, J. P., Crew III, Casey and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Contrary to petitioner’s assertions, his disciplinary hearing was commenced within seven days of his being confined to his cell as mandated by 7 NYCRR 251-5.1 (a). The period of his hospitalization is not considered as part of the period of confinement. In addition, the hearing was also conducted within 14 days of the writing of the misbehavior report and therefore the requirements of 7 NYCRR 251-5.1 (b) were also satisfied. As to petitioner’s claim that the chain of custody for his blood sample was flawed, he has failed to meet his burden on this issue insofar as he offered nothing more than mere speculation to support his assertions. In any event, at the hearing he specifically stated that he was not contesting the validity of the test results. Petitioner’s remaining arguments concerning the blood test were waived by his failure to raise them at the hearing.

Mikoll, J. P., Crew III, Casey and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

209 A.D.2d 807, 618 N.Y.S.2d 602, 1994 N.Y. App. Div. LEXIS 11076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caviano-v-stinson-nyappdiv-1994.

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