Serrano v. Goord

28 A.D.3d 838, 811 N.Y.S.2d 596

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 2006
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

After a sample of petitioner’s urine twice tested positive for the presence of cannabinoids, he was charged in a misbehavior report with using drugs. Following a tier III disciplinary hearing, petitioner was found guilty of the charge, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Initially, the misbehavior report, together with the urinalysis test results and related documentation, provide substantial evidence supporting the determination of guilt (see Matter of McMahon v Dobbins, 273 AD2d 578 [2000]). Inasmuch as petitioner was confined on other charges at the time the misbehavior report was issued, the hearing did not have to be commenced within seven days of the date thereof and was timely (see 7 NYCRR 251-5.1 [a]; Matter of Headley v Goord, 274 AD2d 714 [2000]). Petitioner’s claim of hearing officer bias has not been preserved for our review (see Matter of Kavazanjian v Goord, 264 AD2d 886, 886 [1999]) and, in any event, is lacking in merit.

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