| Matter of Quinones v Fischer |
| 2010 NY Slip Op 08419 [78 AD3d 1407] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of David Quinones, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, 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 Supreme Court,entered in Franklin County) to review a determination of respondent which found petitioner guilty ofviolating certain prison disciplinary rules.
Petitioner, a prison inmate, was ordered to provide a sample for a random urinalysis test. Duringthe process, a correction officer observed petitioner placing an unidentified powder into his urinesample and directed him to stop. Petitioner then placed the remaining substance in the toilet and flushed.This act resulted in a misbehavior report charging petitioner with failing to comply with urinalysisguidelines, interfering with an employee and refusing a direct order. The first urine sample having beentainted, the officer ordered petitioner to provide another sample, which he was incapable of doingwithin a three-hour period. As a result, he was served with a second misbehavior report charging himwith failure to comply with urinalysis guidelines and refusal of a direct order. Following a tier IIIdisciplinary hearing, petitioner was found guilty of only those charges stemming from the firstmisbehavior report. That determination was affirmed on administrative appeal, after which petitionercommenced this CPLR article 78 proceeding.
Initially, we agree with the Attorney General that substantial evidence does not support that part ofthe determination that found petitioner guilty of interfering with an employee (see Matter of Valentino v Bezio, 72 AD3d1376, 1376 [2010]; Matter of Quinones v Fischer, 55 [*2]AD3d 1200, 1200 [2008]). However, with regard to the remainingcharges, the detailed misbehavior report and testimony of the correction officer involved providesubstantial evidence to support the determination of guilt (see Matter of Hernandez v Bezio, 73 AD3d 1406, 1407 [2010]; Matter of Sital v Fischer, 73 AD3d1348, 1349 [2010], lv denied 15 NY3d 707 [2010]). As a recommended loss of goodtime was imposed, the matter must be remitted for a reassessment of the penalty (see Matter of Platten v Bezio, 73 AD3d1419, 1420 [2010]; Matter of Argentinav Bezio, 69 AD3d 1287, 1288 [2010], lv denied 14 NY3d 709 [2010]).
Turning to petitioner's procedural contentions, we find that he was not improperly refused the rightto call a witness from the Office of Mental Health. That witness possessed no information relevant tothe charges for which petitioner was found guilty, which were premised on petitioner's tampering withhis urine sample, not his inability to urinate (see Matter of Orr v Selsky, 290 AD2d 768, 769[2002]; Matter of Reynoso v Coombe, 229 AD2d 732, 732 [1996], lv denied 89NY2d 801 [1996]). Our review of the record demonstrates that the determination was the result of theevidence presented against petitioner rather than any alleged hearing officer bias (see Matter of Sitalv Fischer, 73 AD3d at 1349; Matter ofKey v Fischer, 72 AD3d 1365, 1366 [2010]). Finally, the minor gaps in the hearing transcriptdid not render it so incomplete as to preclude meaningful review (see Matter of White v Superintendent of Wyoming Correctional Facility, 69AD3d 1180, 1181 [2010]).
We have examined petitioner's remaining contentions and find them to be without merit.
Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guilty ofinterfering with an employee and imposed a penalty; petition granted to that extent, respondent isdirected to expunge all references thereto from petitioner's institutional record and matter remitted torespondent for an administrative redetermination of the penalty on the remaining violations; and, as somodified, confirmed.