| Matter of Abraham v State of New York |
| 2008 NY Slip Op 02065 [49 AD3d 998] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Calvin Abraham, Petitioner, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, initially was charged in a misbehavior report with threatening afellow inmate and, after his urinalysis sample tested positive for the presence of opiates, wasissued a second misbehavior report based upon that test result. Following two tier III disciplinaryhearings, petitioner was found guilty of both charges and separate administrative penalties wereimposed. Petitioner's subsequent administrative appeals proved unsuccessful, prompting him tocommence this proceeding pursuant to CPLR article 78 seeking to annul both of the underlyingdeterminations.
We confirm. With regard to petitioner's assertion that he was denied the right to call relevantwitnesses, including the inmate he threatened, we need note only that the Hearing Officer advisedpetitioner that the victim refused to testify and the reasons therefore. Inasmuch as petitionerneither raised any objection in this regard nor requested any additional witnesses, he cannot nowbe heard to complain (see Matter ofFrazier v Artus, 40 AD3d 1288 [2007]). As to petitioner's claim that the Hearing Officerfailed to independently assess the credibility and reliability of the confidential informationoffered at the hearing on the threat charge, assuming [*2]thiscontention is properly before us, the confidential materials provided for our in camera reviewreveal that the Hearing Officer indeed had sufficiently detailed information available toundertake the required assessment (seeMatter of Lashley v Lindsay, 45 AD3d 1073 [2007]). Equally unpersuasive ispetitioner's assertion that there was a break in the chain of custody regarding his urine sample, asthe testimony of the correction officer who initially obtained the sample adequately explains theentries contained on the chain of custody form (see Matter of Zippo v Goord, 2 AD3d 1006 [2003]; Matter ofSpulka v Selsky, 308 AD2d 650, 651 [2003]). Further, whatever intermittent gaps may existin the respective hearing transcripts do not preclude meaningful appellate review (see Matterof Campbell v Stinson, 269 AD2d 631 [2000], appeal dismissed 95 NY2d 848[2000]), and petitioner has failed to demonstrate how conducting the two disciplinary hearings onthe same day was either improper or prejudicial. Petitioner's remaining contentions, including hisassertion that the determinations are not supported by substantial evidence, have been examinedand found to be lacking in merit.
Mercure, J.P., Carpinello, Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.