Lopez v. Goord

Appellate Division of the Supreme Court of New York

Lopez v. Goord

14 A.D.3d 771, 786 N.Y.S.2d 852, 2005 N.Y. App. Div. LEXIS 43

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

DecidedJanuary 6, 2005

StatusPublished

Cited by7 cases

This text of 14 A.D.3d 771 (Lopez v. Goord) 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

Lopez v. Goord, 14 A.D.3d 771, 786 N.Y.S.2d 852, 2005 N.Y. App. Div. LEXIS 43 (N.Y. Ct. App. 2005).

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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 certain prison disciplinary rules.

Petitioner, an inmate, was ordered by a correction officer to provide a urine sample as part of a random screening. During the testing procedure, the correction officer observed petitioner dip the specimen cup into the sink and hand him the cup containing what appeared to be water. After testing the temperature of the liquid in the cup and determining that it was too cold to be urine, the correction officer discarded it. When petitioner was unable to provide a urine specimen within the remaining three-hour period, he was charged in a misbehavior report with refusing a direct order and failing to comply with urinalysis testing procedures. He was found guilty of these charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it and administered the urinalysis test, provide substantial evidence supporting the determination of guilt (see Matter of Green v Ricks, 304 AD2d 1010, 1011 [2003], lv denied 100 NY2d 509 [2003], cert denied 540 US 1166 [2004]; Matter of Borcsok v Selsky, 296 AD2d 678, 678 [2002], lv denied 98 NY2d 616 [2002]). Petitioner’s claims that proper urinalysis testing procedures were not followed and that the charges were redundant have not been preserved for our review inasmuch as he failed to raise them at the disciplinary hearing (see Matter of Torres v Selsky, 8 AD3d 775, 776 [2004]; Matter of Blackwell v Goord, 5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]). Petitioner’s remaining claims lack merit.

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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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 certain prison disciplinary rules.

Petitioner, an inmate, was ordered by a correction officer to provide a urine sample as part of a random screening. During the testing procedure, the correction officer observed petitioner dip the specimen cup into the sink and hand him the cup containing what appeared to be water. After testing the temperature of the liquid in the cup and determining that it was too cold to be urine, the correction officer discarded it. When petitioner was unable to provide a urine specimen within the remaining three-hour period, he was charged in a misbehavior report with refusing a direct order and failing to comply with urinalysis testing procedures. He was found guilty of these charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it and administered the urinalysis test, provide substantial evidence supporting the determination of guilt (see Matter of Green v Ricks, 304 AD2d 1010, 1011 [2003], lv denied 100 NY2d 509 [2003], cert denied 540 US 1166 [2004]; Matter of Borcsok v Selsky, 296 AD2d 678, 678 [2002], lv denied 98 NY2d 616 [2002]). Petitioner’s claims that proper urinalysis testing procedures were not followed and that the charges were redundant have not been preserved for our review inasmuch as he failed to raise them at the disciplinary hearing (see Matter of Torres v Selsky, 8 AD3d 775, 776 [2004]; Matter of Blackwell v Goord, 5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]). Petitioner’s remaining claims lack merit.

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

14 A.D.3d 771, 786 N.Y.S.2d 852, 2005 N.Y. App. Div. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-goord-nyappdiv-2005.

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