Wilson v. Coombe

237 A.D.2d 831, 655 N.Y.S.2d 192, 1997 N.Y. App. Div. LEXIS 2740

Opinion

Yesawich Jr., J.

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

While an inmate at Auburn Correctional Facility in Cayuga County, petitioner was found in possession of six packets of heroin contained in a law library book bag he was carrying. Following a disciplinary hearing, he was adjudged guilty of possessing a controlled substance. His administrative appeal having been unsuccessful, he commenced this CPLR article 78 proceeding challenging the finding of guilt.

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Initially, we reject petitioner’s claim that deficiencies in the transcript of the proceedings preclude meaningful review. Although certain portions of the audiotape of the hearing were found, upon transcription, to be unintelligible, these deficiencies are minor and sporadic and do not impede resolution of the other issues raised by petitioner (see, Matter of Reynoso v Bartlett, 231 AD2d 814, 815, lv denied 89 NY2d 809). Regarding petitioner’s contention that there was a lack of compliance with the regulations governing the chain of custody of the heroin seized, it suffices to note that this claim, not having been raised at the disciplinary proceeding, has not been preserved for review (see, Matter of Lanham v Coombe, 233 AD2d 629, 630; Matter of Hubert v Coombe, 233 AD2d 644, 645). Moreover, were we to consider the merits, we would reject it, for the record reveals that appropriate procedures were followed. Equally unavailing is petitioner’s argument that a proper foundation was not laid for the introduction of scientific evidence relating to the weight of the heroin seized. There being evidence that petitioner did indeed possess the heroin, the disciplinary rule violation was established; the weight of the contraband is irrelevant. We have considered petitioner’s remaining claim and find that it, too, is meritless.

Mikoll, J. P., White, Casey and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although this proceeding was improperly transferred to this Court— petitioner raised no issue based on substantial evidence—we have retained jurisdiction and address the merits of petitioner’s arguments in the interest of judicial economy (see, Matter of Harris v New York State Div. of Parole, 211 AD2d 205, 206).