Islar v. Coombe

226 A.D.2d 851, 640 N.Y.S.2d 650, 1996 N.Y. App. Div. LEXIS 3698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1996
• Status: Published

Opinion

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

Petitioner, a prison inmate who was found with a small packet of marihuana in his possession, challenges an administrative determination finding him guilty of possessing a controlled substance. Initially, we find that inasmuch as petitioner failed to raise his claim at the administrative hearing that he was denied the right to call a witness, he has not preserved this claim for review. We further find that the misbehavior report, combined with the testimony of the correction officers who found petitioner in possession of the controlled substance, provide substantial evidence supporting the administrative determination. Moreover, petitioner’s exculpatory explanation for his possession of the marihuana merely presented a credibility question for the Hearing Officer to resolve (see, Matter of Perez v Wilmot, 67 NY2d 615, 616-617). Finally, although petitioner contends that there are deficiencies in the chain of custody, we find that the drug test request form and misbehavior report sufficiently established the chain of custody (see, e.g., Matter of Torres v Selsky, 223 AD2d 889; Matter of Adorno v Coughlin, 216 AD2d 615). Therefore, the administrative determination must be confirmed

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