| Matter of Vargas v Bezio |
| 2010 NY Slip Op 00335 [69 AD3d 1075] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Anthony Vargas, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 a prison disciplinary rule.
Petitioner was charged with violating the prison disciplinary rule prohibiting the use of acontrolled substance after a sample of his urine twice tested positive for the presence of THC. Hewas found guilty of this charge following a tier III disciplinary hearing. The determination wasthereafter affirmed on administrative appeal with a modified penalty. This CPLR article 78proceeding ensued.
We confirm. The misbehavior report, together with the positive urinalysis test results andrelated documentation, as well as the testimony of the correction officers involved, providesubstantial evidence supporting the determination of guilt (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009];Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]). Contrary to petitioner's claim, thecorrection officer who tested petitioner's urine sample adequately explained that themisinformation appearing on the test documentation was the result of clerical errors which didnot undermine the validity of the positive test results (see Matter of Harrison v Fischer, 56 AD3d 917, 917 [2008];Matter of Victor v Goord, 309 AD2d 1026 [2003]). [*2]Petitioner's assertion that he was denied a fair hearing has not beenpreserved for our review due to his failure to raise it in his administrative appeal (see Matter of Britt v Fischer, 54 AD3d1087 [2008]; Matter of Newsome vSelsky, 26 AD3d 565, 566 [2006]).
Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.