| Matter of Lopez v Goord |
| 2008 NY Slip Op 02520 [49 AD3d 1044] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of William Lopez, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner, an inmate, was found face down and unresponsive in the prison yard. As a result,he was taken to the facility hospital for examination. It was determined that he was in direcondition and an ambulance was summoned. Once the ambulance arrived, medication wasadministered and petitioner was transported to an outside hospital for treatment. While there, adrug screen was conducted which proved positive for opiates. Consequently, petitioner wascharged in a misbehavior report with illicit drug use. Following a tier III disciplinary hearing, hewas found guilty as charged. That determination was affirmed upon administrative appeal andthis CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the related documentation and testimonyadduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Callender v Goord, 24AD3d 1145, 1145 [2005]). To the extent that petitioner asserted that he had been assaultedand drugged against his will, a credibility issue was created for resolution by the Hearing Officer(see Matter of Pagan v Selsky, 45AD3d 1120, 1121 [2007]). Petitioner's claim that the drug testing forms were not producedat the hearing and/or given to him is unpreserved for our review given that he failed to lodge anobjection at the hearing (see Matter ofFilpo v Goord, 37 AD3d 891, 892 [2007]).
Cardona, P.J., Peters, Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.