| Matter of Scott v Fischer |
| 2008 NY Slip Op 09505 [57 AD3d 1035] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Harold J. Scott, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondent.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Following a tier III disciplinary hearing, petitioner was found guilty of violating the prisondisciplinary rule that prohibits the use of controlled substances. After an administrative appeal, whichmodified his penalty but affirmed the finding of guilt, petitioner commenced this CPLR article 78proceeding.
We confirm. The two tests performed on urine specimens taken from petitioner resulted in positivefindings for the presence of opiates. Contrary to petitioner's claim, the fact that the urinalysis testingmachine used to examine the specimens was not calibrated between each test as [*2]required by 7 NYCRR former 1020.4 (e) (1) (iv) did not deprivepetitioner of due process.[FN1]While the machine was not calibrated between the tests, respondent's regulations require personnel to"precisely follow procedures recommended by the manufacturer for the operation of the testingapparatus" (7 NYCRR 1020.4 [e] [1] [iii]), and those instructions do not require calibration of themachine before each test is performed.[FN2]Moreover, petitioner has failed to show how he was prejudiced by the manner in which the machinewas operated, or because it was not calibrated between the two tests (see Matter of Paige v Goord, 19 AD3d908, 909 [2005]). Simply stated, the urinalysis testing machine was operated in compliance withthe instructions of the manufacturer (see 7 NYCRR 1020.4 [e] [1] [iii]).
Petitioner also claims that the Hearing Officer was not authorized to conduct the hearing and that,during the hearing, he engaged in an unrecorded conversation with the individual who operated theurinalysis testing. Since petitioner failed to object or otherwise raise either issue before the HearingOfficer, neither is preserved for our review (see Matter of Khan v New York State Dept. ofHealth, 96 NY2d 879, 880 [2001]; Matter of Vaughn v Selsky, 276 AD2d 958, 959[2000], appeal dismissed 96 NY2d 753 [2001]).
We also find no merit to petitioner's claims that he received inadequate employee assistance andthat he was improperly denied the right to call witnesses at the hearing. Specifically, petitioner claimsthat his employee assistant only obtained some of the documents that he requested to establish that thetests had been improperly performed. However, the record reveals that the Hearing Officer arrangedfor additional documents to be produced in response to petitioner's request and, in fact, providedpetitioner with all of the documents that were relevant to the operation of the machine and theperformance of each test (see Matter ofParkinson v Selsky, 49 AD3d 985, 986-987 [2008]; Matter of Davila v Selsky, 48 AD3d 846, 847 [2008]; Matter of Blackwell v Goord, 5 AD3d883, 885 [2004], lv denied 2 NY3d 708 [2004]). Petitioner has not shown that theassistance he received was so deficient as to prevent, or in any way impair, his ability to prepare andpresent a defense to the charges filed against him at the hearing (see Matter of Amaker v Selsky, 43 AD3d 547, 547-548 [2007], lvdenied 9 NY3d 814 [2007]; Matter ofMartino v Goord, 38 AD3d 958, 959 [2007]). As for the witnesses that petitioner requestedbe called at the hearing, the record establishes that either their testimony was not relevant or it wascumulative and redundant to evidence already produced at the hearing (see Matter of Burgess v Selsky, 50 AD3d1347, 1348 [2008]; 7 NYCRR 254.5 [a]).[*3]
Finally, petitioner claims that the content of the misbehaviorreport was not sufficiently specific as it did not provide him with notice as to the nature of the chargesbeing filed against him or the time and date of their commission (see 7 NYCRR 251-3.1 [c]).That claim is simply not supported by a fair reading of the misbehavior report, which charged petitionerwith testing positive for opiates based on an analysis of urine specimens obtained from him on February18, 2007 and February 20, 2007 (see 7 NYCRR 251-3.1 [c]; Matter of Mastropietro v New York State Dept.of Corrections, 52 AD3d 1125, 1126 [2008], lv denied 11 NY3d 711 [2008];Matter of Bonaparte v Goord, 289 AD2d 913, 914 [2001]).
Petitioner's remaining claims, including his challenge to the penalty imposed, have been reviewedand found to be lacking in merit.
Cardona, P.J., Peters, Carpinello and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote 1: Since petitioner's hearing, 7NYCRR 1020.4 (e) (1) (iv) has been amended, effective March 12, 2008, to eliminate the need forrecalibration after each test.
Footnote 2: Directive No. 4937 requirescompliance with manufacturer's directions and instructions. This directive was issued prior topetitioner's hearing but was not, at that time, filed, as required, with the Department of State(see Executive Law § 102; Matter of Jones v Smith, 64 NY2d 1003,1004-1006 [1985]). However, inasmuch as the testing was done in compliance with 7 NYCRR1020.4 (e) (1) (iii), the fact that Directive No. 4937 was not properly promulgated does not require adifferent result.