Karacostantakis v. Prack

107 A.D.3d 1277, 967 N.Y.S.2d 256

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 20, 2013
• 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 Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Correction officers discovered a small cellophane package containing what appeared to be a marihuana cigarette during an authorized strip frisk of petitioner. The item tested positive for marihuana and petitioner was charged in a misbehavior report with possession of a controlled substance. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. Upon administrative review, the determination was upheld and this CPLR article 78 proceeding ensued.

The misbehavior report, unusual incident report, drug test results and petitioner’s own statements that he possessed the item provide substantial evidence supporting the determination of guilt (see Matter of Hall v Fischer, 87 AD3d 1235, 1236 [2011]; Matter of Truman v Fischer, 75 AD3d 1019, 1020 [2010]; Matter of Davis v Prack, 58 AD3d 977, 977 [2009]). Petitioner failed to preserve his argument that there was not a proper foundation for the admission of the drug test results (see Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]). Petitioner’s remaining contentions, to the extent not addressed herein, have been considered and found to be without merit.

Peters, P.J., Lahtinen, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.