| Matter of Reese v Bezio |
| 2010 NY Slip Op 06271 [75 AD3d 1029] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Garland Reese, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,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 a prison disciplinary rule.
After his urine twice tested positive for the presence of marihuana, petitioner, a prisoninmate, was charged in a misbehavior report with the use of a controlled substance. Petitionerwas found guilty following a tier III disciplinary hearing. The determination of guilt wasaffirmed on administrative review with a reduced penalty, after which petitioner commenced thisCPLR article 78 proceeding.
To the extent petitioner argues that there was a lack of substantial evidence, we find that themisbehavior report, the positive test results and the testimony of the correction officer whoperformed the tests support the determination of guilt (see Matter of Duffy v Fischer, 69 AD3d 1073, 1074 [2010]; Matter of Frye v Commissioner ofCorrectional Servs., 69 AD3d 1074, 1074 [2010]).
Turning to petitioner's procedural arguments, the record demonstrates that the hearing washeld in a timely fashion, with the proper extensions granted and the proceedings completed [*2]within those timeframes (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Harrison v Votraw, 56 AD3d868 [2008]). Petitioner's claim that he was improperly denied the right to call certainwitnesses is unpreserved for our review because he failed to object at the hearing and, in fact,stated affirmatively that he had no more witnesses or testimony to present (see Matter of Terrence v Fischer, 64AD3d 1110, 1111 [2009]; Matter of Perretti v Fischer, 58 AD3d 999, 1002 [2009],lv denied 12 NY3d 709 [2009]). We find that the intermittent gaps in the hearingtranscript did not render it so deficient as to preclude meaningful judicial review (see Matter of Abreu v Bezio, 71 AD3d1341, 1342 [2010]). Finally, a review of the record demonstrates no bias on the part of theHearing Officer and that the determination was a result of the evidence presented at the hearing(see Matter of Bermudez v Fischer,71 AD3d 1361, 1361-1362 [2010]).
We have examined petitioner's remaining contentions and find them to be without merit.
Mercure, J.P., Peters, Lahtinen, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.