Hernandez v. Selsky

Jul 11, 2002
Versions:296 A.D.2d 677
744 N.Y.S.2d 727
2002 N.Y. App. Div. LEXIS 7386

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

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized use of controlled substances after his urine twice tested positive for the presence of opiates. Substantial evidence of petitioner’s guilt was presented in the form of the misbehavior report, the documentation relating to the positive laboratory test results, including the daily log, and the testimony of the correction officer who authored the misbehavior report and conducted the urinalysis testing (see, Matter of Barnwell v Goord, 268 AD2d 725, lv denied 95 NY2d 751; Matter of Rivera v Goord, 261 AD2d 754). Petitioner’s assertion that various procedural errors violated his constitutional rights has been reviewed and found to be without merit. In particular, we find that it was not error for the Hearing Officer to deny petitioner’s request to call as witnesses the Deputy Commissioner of Correctional Facility Operations and the Supervisor of Security at Elmira Correctional Facility. Petitioner failed to demonstrate that these individuals possessed any information relevant to the facts that gave rise to this proceeding nor did he show that he was in any way prejudiced by their absence (see, Matter of Nijman v Goord, 294 AD2d 737; Matter of Blanche v Selsky, 253 AD2d 944, 945, lv denied 92 NY2d 817). The remaining contentions raised herein, including petitioner’s assertion of Hearing Officer bias, have been examined and found to be without merit.

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