Taylor v. Coombe

228 A.D.2d 851, 644 N.Y.2d 360, 644 N.Y.S.2d 360, 1996 N.Y. App. Div. LEXIS 6676

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1996
• Status: Published

Opinion

While an inmate at Fulton Correctional Facility in the Bronx, petitioner gave a urine specimen which tested positive for cocaine. He was subsequently found guilty of violating temporary release rules and regulations and use of a controlled substance. While the record establishes that two urinalysis tests were performed, it shows they were done by the same individual despite the fact the regulations require that the tests be performed by different individuals if available (7 NYCRR 1020.4 [e] [1] [iv]). Petitioner, however, is foreclosed from pursuing this issue due to his failure to raise it at the administrative hearing (see, Matter of Rivera v Coombe, 222 AD2d 913). Petitioner’s claims that are properly before us are that the determination is not supported by substantial evidence and that he was denied the right to call witnesses. We find these claims to be without merit. The misbehavior report, combined with the urinalysis request form, procedure form and test results, provide substantial evidence supporting the administrative determination. Moreover, the record discloses that petitioner waived his right to call witnesses at the hearing by indicating to the Hearing Officer that he did not wish to do so. We have examined petitioner’s remaining claims and find that they are either unpreserved for review or lacking in merit.

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