Valerio v. Selsky

Jun 19, 2003
Versions:306 A.D.2d 713
760 N.Y.S.2d 696
2003 N.Y. App. Div. LEXIS 7152

— 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 two urinalysis tests produced positive results for the presence of cannabinoids. Substantial evidence of petitioner’s guilt was presented at his disciplinary hearing in the form of the misbehavior report, the positive urinalysis test results with their accompanying documentation and the testimony of a correction officer, certified as a master trainer in the use of SYVA ETS urinalysis equipment (see Matter of Schnittker v Selsky, 288 AD2d 794 [2001]; Matter of Morales v Selsky, 281 AD2d 658 [2001], lv denied 96 NY2d 713 [2001]). The officer refuted petitioner’s contention that the second urinalysis test results were invalid because his urine sample had been frozen for 10 days prior to testing.

We reject petitioner’s contention that his due process rights were violated because the correction officers who conducted the *714urinalysis testing did not testify at his hearing. By failing to request the appearance of these officers as witnesses, petitioner waived his right to present their testimony (see Matter of Harris v Goord, 273 AD2d 599, 600 [2000], lv dismissed 95 NY2d 917 [2000]). The remaining issues raised herein have been reviewed and found to be without merit.

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