In re the Claim of Kunz

Jun 30, 2005
Versions:19 A.D.3d 990
797 N.Y.S.2d 199
2005 N.Y. App. Div. LEXIS 7185

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 which found petitioner guilty of violating a prison disciplinary rule.

After a correction officer noticed that petitioner‘s speech was impaired, he was ordered to spit out a packet that he was hiding under his tongue. The packet was found to contain 18 smaller packets of a substance that later tested positive for heroin. Petitioner was charged in a misbehavior report with possession of a controlled substance and was found guilty of the charge following a tier III disciplinary hearing. The determination was upheld on administrative appeal, resulting in this CPLR article 78 proceeding.

The testimony at the hearing, together with the test documentation, adequately established the chain of custody and that the proper testing procedures were followed (see 7 NYCRR 1010.4; Matter of Otero v Selsky, 9 AD3d 631, 632 [2004]; Matter of Spulka v Murphy, 276 AD2d 986, 986 [2000], lv denied 96 NY2d 703 [2001]). Accordingly, substantial evidence supports the determination of guilt. Although there is some confusion in the record as to whether petitioner actually received the log book entries requested after the Hearing Officer ordered them produced, petitioner did not object prior to the closure of the hearing and thereby waived this claim (see Matter of Somerville v Goord, 12 AD3d 823, 824 [2004]).

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