| Matter of Ortiz v Fischer |
| 2010 NY Slip Op 06278 [75 AD3d 1042] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Carlos Ortiz, 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 his urine twice tested positive for the presence of cannabinoids, petitioner was issued amisbehavior report charging him with the use of a controlled substance. He was found guiltyfollowing a tier III disciplinary hearing. Petitioner's administrative appeal was unavailing, afterwhich he commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, positive test results and testimony of the testingofficer, along with petitioner's admission during the hearing that he smoked marihuana, providesubstantial evidence to support the determination (see Matter of Covington v Smith, 63 AD3d 1453, 1454 [2009],lv denied 13 NY3d 709 [2009]; Matter of Smith v Dubray, 58 AD3d 968,968-969 [2009]). Additionally, we find that the chain of custody was sufficiently established bythe testing forms and the testing officer's hearing testimony (see 7 NYCRR 1020.4 [e][1] [i]; Matter of Smart v Fischer,67 AD3d 1222, 1222 [2009], lv denied 14 NY3d 705 [2010]). Furthermore, contraryto petitioner's contention, all of the necessary documentation required to support the admissionof the positive test results into evidence is contained in the record and any alleged errors in thedaily worksheets were of no moment, as the calibration slips printed directly from the testingmachine showing positive tests contained petitioner's correct identification [*2]number (see 7 NYCRR 1020.4 [e] [1] [iv]; 1020.5 [a] [1];Matter of Johnson v Fischer, 73AD3d 1369, 1370 [2010]).
Turning to his procedural contentions, we find that petitioner was not improperly denied theright to call a witness, as the record reflects that the witness had no direct knowledge regardingpetitioner's positive test results (seeMatter of Williams v Fischer, 69 AD3d 1278, 1278-1279 [2010]; Matter of Brown v Taylor, 62 AD3d1230, 1232 [2009]). Further, our review of the record demonstrates that the determination ofguilt was the result of petitioner's admissions and the evidence presented against him, rather thanany alleged hearing officer bias (seeMatter of Bermudez v Fischer, 71 AD3d 1361, 1361-1362 [2010]; Matter of Pettus v New York State Dept. ofCorrectional Servs., 70 AD3d 1164, 1164 [2010]).
We have examined petitioner's remaining contentions and find them to be either unpreservedor unpersuasive.
Cardona, P.J., Rose, Lahtinen, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.