Pena v. Goord

Appellate Division of the Supreme Court of New York

Pena v. Goord

253 A.D.2d 915, 678 N.Y.S.2d 306, 1998 N.Y. App. Div. LEXIS 9341

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

DecidedSeptember 10, 1998

StatusPublished

This text of 253 A.D.2d 915 (Pena 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

Pena v. Goord, 253 A.D.2d 915, 678 N.Y.S.2d 306, 1998 N.Y. App. Div. LEXIS 9341 (N.Y. Ct. App. 1998).

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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 pleaded guilty to the unauthorized use of controlled substances and failing to comply with temporary release programming rules and regulations in violation of prison disciplinary rules after petitioner’s urine tested positive for both opiates and cannabinoids. Petitioner now challenges the determination of his guilt contending that the Hearing Officer should not have presided over the hearing because he interviewed petitioner (albeit on another matter) and requested that petitioner submit a urine specimen. Inasmuch as petitioner failed to raise this issue at the administrative hearing when the appropriate remedial action could have been taken, this issue has not been preserved for our review (see, Matter of Guerrero v Coombe, 239 AD2d 676). In any event, were we to consider this issue, we would find no bias on the part of the Hearing Officer given petitioner’s plea of guilty to the charges contained in the misbehavior report (see, Matter of Washington v Goord, 245 AD2d 914).

Mercure, J. P., Crew III, Yesawich Jr., Peters and Spain, 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 pleaded guilty to the unauthorized use of controlled substances and failing to comply with temporary release programming rules and regulations in violation of prison disciplinary rules after petitioner’s urine tested positive for both opiates and cannabinoids. Petitioner now challenges the determination of his guilt contending that the Hearing Officer should not have presided over the hearing because he interviewed petitioner (albeit on another matter) and requested that petitioner submit a urine specimen. Inasmuch as petitioner failed to raise this issue at the administrative hearing when the appropriate remedial action could have been taken, this issue has not been preserved for our review (see, Matter of Guerrero v Coombe, 239 AD2d 676). In any event, were we to consider this issue, we would find no bias on the part of the Hearing Officer given petitioner’s plea of guilty to the charges contained in the misbehavior report (see, Matter of Washington v Goord, 245 AD2d 914).

Mercure, J. P., Crew III, Yesawich Jr., Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

253 A.D.2d 915, 678 N.Y.S.2d 306, 1998 N.Y. App. Div. LEXIS 9341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-v-goord-nyappdiv-1998.

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