| Matter of Thanh Giap v Fischer |
| 2010 NY Slip Op 00339 [69 AD3d 1079] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Thanh Giap, 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.
After petitioner twice tested positive for marihuana, he was served with a misbehavior reportcharging him with drug use. A tier III disciplinary hearing ensued, after which petitioner wasfound guilty. Upon administrative appeal, the determination was affirmed, but the penaltyassessed to petitioner was greatly reduced. He then commenced this CPLR article 78 proceedingto challenge both the determination and the penalty imposed.
We confirm. To the extent that petitioner argues that the determination was not supported bysubstantial evidence, the misbehavior report, positive drug tests and testimony at the hearingsubstantiated the determination (seeMatter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]; Matter of Smith vDubray, 58 AD3d 968, 968-969 [2009]). Additionally, we find the testimony of thecorrection officers who both collected the sample from petitioner and tested it sufficientlyestablished that the chain of custody was properly maintained (see Matter of Smith v Fischer, 54AD3d 1083, 1084 [2008]; Matterof McAdoo v Goord, 32 AD3d 1058, 1058-1059 [2006]). Contrary to petitioner'scontention, the fact that the Hearing Officer warned petitioner that if he continued to disrupt theproceedings he would be removed did not demonstrate bias, [*2]nor does the record show other indications that the determinationflowed from any alleged bias (seeMatter of Fontaine v Superintendent of Southport Correctional Facility, 35 AD3d 1113,1114 [2006], appeal dismissed 8 NY3d 943 [2007]; Matter of Barca v Goord, 19 AD3d 772, 773 [2005], lvdenied 5 NY3d 710 [2005]). Lastly, we are unpersuaded by petitioner's claim that hispenalty was so severe as to shock one's sense of fairness, particularly in light of the fact that itwas reduced on administrative appeal to less than half of what the Hearing Officer had originallyimposed (see Matter of Martinez vGoord, 48 AD3d 851 [2008]; Matter of Rivera v Goord, 38 AD3d 964, 964-965 [2007]).
We have examined petitioner's remaining contentions, including that he did not receiveproper employee assistance, and find them to be either unpreserved for our review or withoutmerit.
Cardona, P.J., Spain, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.