Markou v. Goord

305 A.D.2d 882, 758 N.Y.S.2d 849, 2003 N.Y. App. Div. LEXIS 5776

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2003
• 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized possession of controlled substances. As related in the misbehavior report, petitioner was being escorted from the prison recreation yard when he threw a small packet into a ditch. The packet was retrieved by the reporting correction officer and submitted for laboratory testing which identified its contents as marihuana.

Substantial evidence of petitioner’s guilt of the charged misconduct was presented at his disciplinary hearing in the form of the misbehavior report, the laboratory test results, and the testimony of the three correction officers who were directly involved in the incident, i.e., the watch tower officer who first observed petitioner sharing what appeared to be a marihuana cigarette with fellow inmates; the officer who escorted petitioner from the yard and retrieved the packet which petitioner attempted to throw away; and the officer who conducted the NIK testing that identified the packet’s contents as marihuana (see Matter of Anderson v Selsky, 297 AD2d 867 [2002]; Matter of Powell v Goord, 293 AD2d 846 [2002]). The remaining issues raised by petitioner are either unpreserved for judicial review or lack merit.

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