Forbes v. Selsky

Appellate Division of the Supreme Court of New York

Forbes v. Selsky

252 A.D.2d 712, 675 N.Y.S.2d 432, 1998 N.Y. App. Div. LEXIS 8172

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

DecidedJuly 9, 1998

StatusPublished

Cited by1 cases

This text of 252 A.D.2d 712 (Forbes v. Selsky) 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

Forbes v. Selsky, 252 A.D.2d 712, 675 N.Y.S.2d 432, 1998 N.Y. App. Div. LEXIS 8172 (N.Y. Ct. App. 1998).

Pincite

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.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a prison disciplinary determination finding him guilty of using a controlled substance. Petitioner contends that the determination is not supported by substantial evidence because the misbehavior report indicates that the correction officer who tested his urine sample improperly recalibrated the urinalysis testing equipment. We disagree. The correction officer testified at the disciplinary hearing that, although he inadvertently wrote in the misbehavior report that he recalibrated the equipment using a “medium” calibrator, he actually used a “high” calibrator as required by the applicable directive. Moreover, petitioner failed to demonstrate prejudice resulting from this technical defect (see, Matter of Mays v Goord, 243 AD2d 882, 883). Therefore, we conclude that the misbehavior report, the correction officer’s testimony and the positive urinalysis test results provide substantial evidence supporting the determination of petitioner’s guilt (see, Matter of Kreel v Goord, 249 AD2d 600, 601).

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

Free access — add to your briefcase to read the full text and ask questions with AI

—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.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a prison disciplinary determination finding him guilty of using a controlled substance. Petitioner contends that the determination is not supported by substantial evidence because the misbehavior report indicates that the correction officer who tested his urine sample improperly recalibrated the urinalysis testing equipment. We disagree. The correction officer testified at the disciplinary hearing that, although he inadvertently wrote in the misbehavior report that he recalibrated the equipment using a “medium” calibrator, he actually used a “high” calibrator as required by the applicable directive. Moreover, petitioner failed to demonstrate prejudice resulting from this technical defect (see, Matter of Mays v Goord, 243 AD2d 882, 883). Therefore, we conclude that the misbehavior report, the correction officer’s testimony and the positive urinalysis test results provide substantial evidence supporting the determination of petitioner’s guilt (see, Matter of Kreel v Goord, 249 AD2d 600, 601).

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

Cite This Page — Counsel Stack

Bluebook (online)

252 A.D.2d 712, 675 N.Y.S.2d 432, 1998 N.Y. App. Div. LEXIS 8172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forbes-v-selsky-nyappdiv-1998.

Opinion

Related

Cite This Page — Counsel Stack