| Matter of Ortiz v Fischer |
| 2009 NY Slip Op 06062 [64 AD3d 1111] |
| July 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gilbert Ortiz, 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 CLPR 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.
Following a tier III hearing, petitioner was found guilty of possessing narcotics, refusing adirect order and interfering with an employee in violation of prison disciplinary rules. Followingan administrative appeal, the decision was affirmed but his penalty was reduced, promptingpetitioner to commence this CPLR article 78 proceeding to challenge his determination of guilt.
We confirm. The misbehavior report, drug test results and related documentation providesubstantial evidence to support the determination of guilt (see Matter of Tayler v Selsky,49 AD3d 1060, 1060 [2008]). Petitioner's testimony offering an alternate version of theunderlying events created a credibility issue for the Hearing Officer to resolve (see id.).Furthermore, petitioner's contention that the foundation necessary for the admission of andreliance on the drug test results was inadequate is unpreserved for our review due to his failure toraise the issue at the hearing (see Matter of Lopez v Goord, 49 AD3d 1044, 1045 [2008],lv denied 11 NY3d 703 [2008]; Matter of Ross v Selsky, 49 AD3d 1065, 1065[2008]; Matter of Filpo v Goord, 37 AD3d 891, 892 [2007]).[*2]
Finally, we find no violation of Department ofCorrectional Services Directive No. 4910 § V-C-1. Petitioner's removal from the area priorto the search of his cell was necessary because entry to his cell was blocked by the placement ofa broom in the opening of the cell door. In addition, as correction officers sought to enter thecell, petitioner was observed dropping items into the toilet and than flushing it to prevent theirrecovery (see Matter of McKethan v Selsky, 297 AD2d 840, 841 [2002]).
Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.