| Matter of Cespedes v New York State Dept. of CorrectionalServs. |
| 2009 NY Slip Op 09362 [68 AD3d 1429] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carlos Cespedes, Petitioner, v New York StateDepartment 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer recovered two altered soup cans in amilk crate under petitioner's bed. The first can contained 25 pills, identified by a pharmacist asthe prescription medications morphine, percocet and neurontin, as well as a large quantity ofU.S. currency. The second can contained 43.5 grams of a green leafy substance that testedpositive for marihuana. As a result, petitioner was charged in a misbehavior report withpossession of drugs, possession of unauthorized property and possession of unauthorizedmedications. He was found guilty of all of the charges following a tier III disciplinary hearing.The determination was later affirmed on administrative appeal, resulting in this CPLR article 78proceeding.
Petitioner asserts, among other things, that that part of the determination finding him guiltyof drug possession cannot be sustained because he was not provided with a copy of the statementof scientific principles and validity of testing materials and procedures used. Based upon ourreview of the record, we agree. The pertinent regulation requires that such document be servedupon the inmate [*2]where the positive result of a test ofsuspected contraband drugs is used as evidence at a disciplinary hearing (see 7 NYCRR1010.5 [d]; see also Matter of Giannattasio v Coombe, 237 AD2d 287, 288 [1997]).Inasmuch as respondent concedes that such documentation was not provided and no testimonywas adduced concerning the testing procedures employed, substantial evidence does not supportthat part of the determination finding petitioner guilty of drug possession (see Matter ofRuzas v Goord, 268 AD2d 742, 744 [2000]; Matter of Davis v McClellan, 202AD2d 770, 771 [1994]). Accordingly, that part of the determination must be annulled and, to theextent that a loss of good time was imposed, the matter must be remitted for a redetermination ofthe penalty relative to the remaining charges (see Matter of Tevault v Fischer, 61 AD3d1161, 1163 [2009]; Matter of Torres v Fischer, 53 AD3d 1008, 1009 [2008]).
As for the remaining charges, the misbehavior report and documentary evidence providesubstantial evidence supporting the determination of guilt (see Matter of Kimble vFischer, 56 AD3d 879, 879 [2008]; Matter of Gonzalez v Fischer, 53 AD3d 945,945-946 [2008]). Furthermore, although petitioner complains that he was not provided withadequate employee assistance, he has not preserved this claim due to his failure to raise it eitherat the hearing (see Matter of Carter v Goord, 45 AD3d 1077, 1078 [2007]) or in hisadministrative appeal (see Matter of Harris v Selsky, 9 AD3d 695, 696 [2004]).
Rose, J.P., Lahtinen, Kane, McCarthy and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof drug possession and imposed a penalty; petition granted to that extent, the Commissioner ofCorrectional Services is directed to expunge all references thereto from petitioner's institutionalrecord and matter remitted to the Commissioner of Correctional Services for an administrativeredetermination of the penalty imposed on the remaining violations; and, as so modified,confirmed.