McCorkle v. Bennett

8 A.D.3d 918, 779 N.Y.S.2d 623, 2004 N.Y. App. Div. LEXIS 8818

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 2004
• 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 was suspected of using drugs and required to provide a urine specimen, which tested positive for the presence of cannabinoids. As a result, he was charged in a misbehavior report with using a controlled substance. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination of guilt was upheld on administrative appeal, with a modified penalty, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, positive urinalysis test results and testimony of the correction officer who tested petitioner’s urine specimen provide substantial evidence to support the determination (see Matter of Alexander v Goord, 3 AD3d 638 [2004]; Matter of Felton v Selsky, 2 AD3d 1033 [2003], lv dismissed 2 NY3d 758 [2004]). We find no error in the denial of petitioner’s request to have the request for urinalysis form of another inmate admitted in evidence at the hearing as it was irrelevant to the charge against petitioner (see Matter of Spirles v Goord, 308 AD2d 610, 611 [2003]; Matter of Weatherly v Goord, 268 AD2d 642, 643 [2000]). Furthermore, we are unpersuaded by petitioner’s claim of hearing officer bias as the record discloses that the hearing was conducted in a fair and impartial manner, and there is no indication that the determination flowed from any alleged bias (see Matter of Johnson v Goord, 4 AD3d 582, 584 [2004], lv denied 2 NY3d 708 [2004]; Matter of Simpson v Goord, 308 AD2d 641, 642 [2003], lv denied 2 NY3d 704 [2004]). Petitioner’s remaining contentions are either unpreserved or lacking in merit.

Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.