Gray v. Selsky

37 A.D.3d 890, 829 N.Y.S.2d 271

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2007
• 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, an inmate, was charged in a misbehavior report with violating a rule regarding urinalysis testing. According to the report, petitioner was ordered to provide a urine sample but was unable to do so within three hours. After being informed that the inability to provide a sample would be considered a refusal subject to discipline, petitioner still did not produce a sample. A Hearing Officer found petitioner guilty and that determination was upheld on administrative appeal. This proceeding ensued.

Petitioner argues that he was denied documentary evidence because he asked for the request for urinalysis test form but was never given a copy. Although petitioner did request that document and the Hearing Officer stated that he would provide petitioner with a copy, the Hearing Officer did not do so. By his failure to remind the Hearing Officer before the close of the evidence, even after being twice asked if he had any further evidence or documents to be considered, petitioner waived this objection (see Matter of Alvarez v Goord, 243 AD2d 973, 975 [1997]). In any event, petitioner has not established any prejudice as a result of not receiving a copy of this document (see id.). We have considered petitioner’s remaining contentions and find them without merit.

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