| Matter of Geraci v Fischer |
| 2009 NY Slip Op 05229 [63 AD3d 1467] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Sammy Geraci, 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 a prison disciplinary rule.
Petitioner was charged in a misbehavior report with using a controlled substance after hisurine twice tested positive for the presence of opiates. He was found guilty of the chargefollowing a tier III disciplinary hearing. The determination was affirmed on administrativeappeal with a modified penalty. This CLPR article 78 proceeding ensued.
We confirm. The misbehavior report, positive urinalysis test results, supportingdocumentation and hearing testimony provide substantial evidence supporting the determinationof guilt (see Matter of Livingston vFischer, 52 AD3d 1152, 1153 [2008], lv denied 11 NY3d 707 [2008]; Matter of Marino v New York State Dept.of Correctional Servs., 41 AD3d 1004, 1005 [2007], appeal dismissed and lvdenied 9 NY3d 940 [2007]). We disagree with petitioner's argument that the lieutenant whoapproved the test was required to sign the request for urinalysis test form; the lieutenant testifiedthat he approved the test over the phone and a correction officer documented that approval on theform, thus satisfying the regulatory requirements (see 7 NYCRR 1020.4 [b]). We rejectpetitioner's contention that the misbehavior report was defective because it incorrectly stated thedate upon which his urine sample was collected. The correct date was listed on the request forurinalysis test form and testified to by the correction officer [*2]who completed that form. The correction officer who tested theurine and filled out the misbehavior report explained the date discrepancy as a clerical error andtestified as to the correct date (seeMatter of Harrison v Fischer, 56 AD3d 917, 917 [2008]). We have consideredpetitioner's remaining arguments and find them either unpreserved or lacking in merit.
Peters, J.P., Kane, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.