| Matter of Harrison v Fischer |
| 2008 NY Slip Op 08575 [56 AD3d 917] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Corey Harrison, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Rose, 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 a prison disciplinary rule.
Petitioner was found guilty of violating the prison disciplinary rule prohibiting the use ofcontrolled substances after his urine twice tested positive for the presence of marihuana.Preliminarily, to the extent that petitioner raises a substantial evidence issue, we find that themisbehavior report, together with the positive urinalysis test results and the testimony adduced atthe hearing, constitute substantial evidence of petitioner's guilt (see Matter of Molina v Selsky, 21AD3d 1238, 1238-1239 [2005]; Matter of Pollard v Goord, 18 AD3d 1041, 1042 [2005]). Theminor clerical errors that may have existed regarding the date upon which petitioner's urine wastested and/or the expiration dates for certain reagents were sufficiently explained by thecorrection officer who conducted the test and authored the misbehavior report (see Matter of Shabazz v Selsky, 12AD3d 795, 796 [2004]; Matter of Victor v Goord, 309 AD2d 1026, 1026-1027[2003]; Matter of Perkins v Goord, 308 AD2d 617, 618 [2003]), and we perceive nodeficiencies in the chain of custody (see Matter of Molina v Selsky, 21 AD3d at 1238;Matter of Pollard v Goord, 18 AD3d at 1042).[*2]
Equally unpersuasive is petitioner's claim that he wasdenied documentary evidence and the right to testify on his own behalf. The record reflects thatthe hearing was adjourned in order to provide petitioner with a copy of the request for urinalysistest form, which petitioner had sufficient time to review, and the failure to provide petitionerwith a copy of the "legal drug testing manual" did not constitute a denial of his due process rights(see Matter of Davis v Goord, 268 AD2d 932, 932-933 [2000], lv denied 95NY2d 751 [2000]; Matter of Foust v Goord, 262 AD2d 904 [1999]). Also, when askedby the Hearing Officer whether he had anything else to offer prior to the close of the fact-findinghearing, petitioner replied, "No." Petitioner's remaining contentions, to the extent that they havebeen preserved, have been examined and found to be lacking in merit.
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.