Wade v. Portuondo

289 A.D.2d 663, 733 N.Y.S.2d 648, 2001 N.Y. App. Div. LEXIS 11646

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 2001
• Status: Published

Opinion

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

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine sample twice tested positive for the presence of opiates and cannabinoids. Petitioner challenges the determination claiming that a number of procedural errors require its annulment.

* Although petitioner initially was not provided with a request for urinalysis form, the Hearing Officer corrected the discrepancy and adjourned the hearing to afford petitioner an opportunity to review the document. Accordingly, any alleged deficiencies in the documents provided by the employee assistant were corrected by the Hearing Officer, thereby obviating any prejudice (see, Matter of Matos v Goord, 267 AD2d 730; Matter of Mitchell v Goord, 266 AD2d 614, 615). Even if preserved for our review, we would find petitioner’s claim of Hearing Officer bias to be without merit.

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

Although the proceeding was properly transferred to this Court since the petition raised a substantial evidence issue, petitioner has not raised a substantial evidence issue in his brief and we deem the issue abandoned (see, Matter of Johnson v Goord, 260 AD2d 816).