Peoples v. Fischer

92 A.D.3d 1008, 937 N.Y.2d 641

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 2012
• Status: Published

Opinion

We confirm. The misbehavior report, positive test results and testimony of the correction officer who performed the tests provide substantial evidence to support the determination of guilt (see Matter of Moss v Prack, 87 AD3d 1255, 1255-1256 [2011]; Matter of Polite v Fischer, 87 AD3d 1212, 1212 [2011]). We reject petitioner’s claim that he was improperly denied the right to call a doctor or pharmacist as a witness inasmuch as he did not make such a request until after the disposition was rendered (see Matter of Reid v Fischer, 78 AD3d 1400, 1401 [2010]; Matter of Cooper v Goord, 284 AD2d 844, 845 [2001]). Petitioner’s contention that the EMIT drug test, standing alone, was insufficient to substantiate the presence of drugs in his urine is unpreserved by his failure to raise it during the hearing (see Matter of Kalwasinski v Fischer, 87 AD3d 1187, 1188 [2011]; Matter of Daniel v Fischer, 86 AD3d 892, 893 [2011]).

Rose, J.E, Lahtinen, Spain, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.