Robinson v. Herbert

Feb 16, 2000
Versions:269 A.D.2d 807
703 N.Y.S.2d 423
2000 N.Y. App. Div. LEXIS 1706

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was found guilty after a Tier III hearing of violating inmate rule 113.12 (7 NYCRR 270.2 [B] [14] [iii]). The positive results of two urinalysis tests indicating the presence of marihuana provide substantial evidence to support the determination of the Hearing Officer (see, Matter of Lahey v Kelly, 71 NY2d 135, 138; Matter of Montalalou v Coombe, 242 AD2d 917, lv denied 91 NY2d 805). The additional testimony presented at the hearing supports that determination. We reject the contention of petitioner that he was denied equal protection.

Petitioner’s conditional right to call witnesses was not violated because the witnesses who were not called would have provided redundant testimony (see, Matter of Rodriguez v Coombe, 249 AD2d 655; Matter of Fletcher v Murphy, 249 AD2d 638). Petitioner waived his right to challenge the failure of the Hearing Officer to file a written notice of the reason the witnesses were not allowed to testify because he failed to raise the issue at the hearing (see, Matter of Henry v Coughlin, 214 AD2d 673, 674). In any event, the reason for the refusal was placed on the record, and petitioner was not prejudiced by the failure to file a written notice (see, Matter of Kavazanjian v Goord, 264 AD2d 886; see also, Matter of Morrison v Selsky, 246 AD2d 939).

Petitioner’s remaining challenges to alleged violations of the rules and regulations are without merit. The misbehavior report provided petitioner with sufficient detail to prepare a defense (see, Matter of Lahey v Kelly, supra, at 144). Further, there is no evidence of a break in the chain of custody related to the urine sample, and the proper procedures and documents were utilized. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Wolfgang, J.) Present — Pine, J. P., Wisner, Hurlbutt, Balio and Lawton, JJ.