| Matter of Quinones v Fischer |
| 2009 NY Slip Op 08735 [67 AD3d 1285] |
| November 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of William Quinones, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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.
Three days before being released on parole, petitioner was charged in a misbehavior reportwith possession of marihuana after a green leafy substance was found hidden in his locker duringa cube frisk. Following a tier III disciplinary hearing, petitioner was found guilty. Onadministrative appeal, respondent affirmed the determination but reduced the penalty. Petitioner,thereafter, commenced this CPLR article 78 proceeding.
The misbehavior report, together with the hearing testimony and the drug testdocumentation, provide substantial evidence supporting the determination of guilt (seeMatter of Batts v Fischer, 60 AD3d 1129, 1129 [2009]; Matter of Diaz v Goord, 26AD3d 561, 562 [2006]). Petitioner's assertion that the drugs were not his and had been plantedby someone else presented a credibility issue for the Hearing Officer to resolve (see Matterof Batts v Fischer, 60 AD3d at 1129; Matter of Costner v Goord, 31 AD3d 1082,1083 [2006]).
Petitioner contends that the form submitted to request testing of the substance found in [*2]his cube was improperly completed by correction officers(see 7 NYCRR 1010.4 [b]). We find that the information entered thereon, as confirmedby hearing testimony and supplemented by other documentation, was sufficient to satisfy theapplicable regulations (see Matter of Davila v Selsky, 305 AD2d 953, 953 [2003]).Finally, petitioner's claim that he was deprived of his right to view the search of his cube was notpreserved for our review; petitioner did not raise it at the hearing or in his administrative appeal(see Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]; Matter of Colon vGoord, 274 AD2d 732, 732 [2000]). Petitioner's remaining contentions have been consideredand found lacking in merit.
Cardona, P.J., Spain, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.