Dawkins v. Selsky

278 A.D.2d 649, 718 N.Y.S.2d 233, 2000 N.Y. App. Div. LEXIS 13024

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2000
• 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 Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of possessing a controlled substance after a routine search of his cell disclosed an altered pen containing a substance which tested positive for amphetamines. The misbehavior report and the positive narcotic test kit results constitute substantial evidence of petitioner’s guilt (see, Matter of Rosario v Selsky, 266 AD2d 656, 657; Matter of Moley v Selsky, 245 AD2d 588, 589). Although petitioner claims that the test results were incorrect and that the misbehavior report was fabricated in retaliation for grievances that he previously filed, the Hearing Officer was entitled to resolve these credibility issues against petitioner (see, Matter of Juzwa v Goord, 264 AD2d 920, 921; Matter of Moore v Rabideau, 250 AD2d 1008, 1009; Matter of Darnell v Kuhlmann, 145 AD2d 852, 854). Petitioner’s procedural challenges were not raised at the disciplinary hearing and, therefore, are not preserved for appellate review (see, Matter of Daum v Goord, 270 AD2d 745, 746; Matter of Benton v Couture, 269 AD2d 642). In any event, were we to review the arguments, we would find that they do not warrant annulment of the determination.

Mercure, J. P., Peters, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.