| Matter of Boggs v Martuscello |
| 2011 NY Slip Op 04341 [84 AD3d 1667] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Steven J. Boggs, Petitioner, v Daniel Martuscello,as Acting Superintendent, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Greene County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
During a routine inspection, correction officers intercepted and opened a package sent topetitioner by a female visitor. The package contained a book that appeared to have been tamperedwith and, upon further inspection, a quantity of marihuana was discovered concealed in thebinding. Following further investigation, petitioner was charged in a misbehavior report withconspiring to introduce contraband into the facility, soliciting others to smuggle contraband intothe facility and violating facility package procedures. Following a tier III disciplinary hearing, hewas found guilty of the charges and the determination was affirmed on administrative appeal.This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officerwho authored it, the documentary evidence and the confidential information considered by theHearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Houston v Fischer, 69AD3d 1086, 1086 [2010]; Matter ofAdorno v Goord, 35 AD3d 930, 931 [2006]). Petitioner's assertion that a properfoundation for the drug test [*2]results was not established inaccordance with 7 NYCRR 1010.5 is not preserved for our review due to his failure to raise iteither at the hearing or on his administrative appeal (see Matter of White v Superintendent of Wyoming CorrectionalFacility, 69 AD3d 1180, 1181 [2010]; see also Matter of Gargano v Goord, 278AD2d 716, 717 [2000], lv denied 96 NY2d 716 [2001]). Furthermore, we find no meritto his claim that he was not given proper notice of the misbehavior report inasmuch as thecorrection officer who served it upon him testified that he did so prior to the hearing and theHearing Officer provided petitioner with another copy and adjourned the hearing to afford himthe opportunity to review it. In view of the foregoing, we find no reason to disturb thedetermination finding petitioner guilty of the charges at issue.
Mercure, J.P., Rose, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.