| Matter of Horne v Fischer |
| 2009 NY Slip Op 01907 [60 AD3d 1233] |
| March 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Reginald Horne, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, 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 a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tierIII disciplinary determination finding him guilty of drug use. We now confirm.
The determination of guilt is supported by substantial evidence including the misbehaviorreport and positive drug test results and related documentation (see Matter of Castillo v Goord, 46AD3d 1060, 1061 [2007]). Although the misbehavior report erroneously indicated thatpetitioner tested positive for THC—instead of correctly referencing opiates—thisinadvertent error was sufficiently explained by the reporting correction officer during his hearingtestimony (see Matter of Harrison vFischer, 56 AD3d 917, 917 [2008]). Petitioner's remaining contentions are unpreservedfor our review.
Cardona, P.J., Mercure, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.