Spulka v. Selsky

Nov 2, 2000
Versions:277 A.D.2d 552
715 N.Y.S.2d 521
2000 N.Y. App. Div. LEXIS 11103

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington 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 inmates from possessing controlled substances after a frisk of petitioner revealed a packet of heroin. The determination of guilt was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued. Initially, upon reviewing the record, we find that the misbehavior report, the testimony of the correction officer who prepared the report, the positive test results and the testimony of the correction officer who performed the testing constitute substantial evidence of petitioner’s guilt (see, Matter of Maldonado v Goord, 270 *553AD2d 742). Contrary to petitioner’s assertions, the evidence sufficiently demonstrated that the testing of the substance was performed in accordance with applicable procedures (see, Matter of Moley v Selsky, 245 AD2d 588, 589).

Petitioner’s claim that the misbehavior report is defective because it does not contain the signatures of a correction officer who witnessed the frisk or the correction officer who tested the substance is unavailing. We note that both officers testified at the hearing and petitioner failed to demonstrate that he suffered any prejudice as the result of this technical error (see, id., at 589; Matter of Serra v Selsky, 223 AD2d 845). In addition, contrary to petitioner’s contention, he was not improperly denied the right to call witnesses to identify the individual who provided the information which prompted the frisk since such evidence was not considered in determining petitioner’s guilt (see, Matter of Davis v Selsky, 270 AD2d 548; Matter of Moore v Rabideau, 250 AD2d 1008, 1009). We have considered petitioner’s remaining contentions, to the extent they have been preserved for our review, and find them to be without merit.

Cardona, P. J., Her cure, Crew III, Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.