| Matter of White v Superintendent of Wyoming CorrectionalFacility |
| 2010 NY Slip Op 00434 [69 AD3d 1180] |
| January 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Hassheim White,Petitioner, v Superintendent ofWyoming Correctional Facility et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
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 required to submit to a drug test after a correction officer smelled marihuanaemanating from the group of prisoners with whom he was congregating in the yard. Afterpetitioner's urine sample twice tested positive for cannabinoids, he was served with amisbehavior report charging him with drug use. Petitioner was found guilty following a tier IIIdisciplinary hearing and his administrative appeal was unavailing. Thereafter, he commencedthis CPLR article 78 proceeding seeking annulment.
We confirm. To the extent that petitioner challenges the determination on the ground that itwas not supported by substantial evidence, we find the misbehavior report and positive testresults to be sufficient to establish his guilt (see Matter of Stallone v Fischer, 65 AD3d 1410 [2009]; Matter of Karapetian v Fischer, 65AD3d 772 [2009]). Petitioner's contention that the test results were erroneously introducedinto evidence because the proper documentation had not been supplied is not preserved for ourreview, inasmuch as he failed to object to their introduction either at the hearing or onadministrative appeal (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]; Matter of Ross v Selsky, 49 AD3d1065, 1065 [2008]). Petitioner's claim that he was refused the right to call witnesses iscontroverted by the hearing record, which evidences that he was asked by the Hearing Officerseveral times whether he would like to call witnesses and each time declined to do so (seeMatter of Riley v Fischer, 58 AD3d 976, 976 [2009]; Matter of Daniels v Goord, 38 AD3d 1073 [2007]). Finally, ourreview of the hearing transcript, which contains minor gaps and omissions, indicates that it wasnot so incomplete as to preclude meaningful review (see Matter of Johnson v Rock, 64 AD3d 1096 [2009]; Matter of Davis v Fischer, 64 AD3d847, 848 [2009], lv denied 13 NY3d 709 [2009]).
We have examined petitioner's remaining claims and have found them to be eitherunpreserved or without merit.
Cardona, P.J., Mercure, Spain, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.