| Matter of Fragosa v Moore |
| 2012 NY Slip Op 01716 [93 AD3d 979] |
| March 8, 2012 |
| Appellate Division, Third Department |
| In the Matter of Anthony Fragosa, Petitioner, v HenryMoore, as Hearing Officer at Sullivan Correctional Facility,Respondent. |
—[*1] Eric T. Schneiderman, 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 Correctionsand Community Supervision which found petitioner guilty of violating certain prison disciplinaryrules.
A correction officer observed petitioner acting suspiciously and ordered him to place hishands on the wall for a pat frisk. Although petitioner initially hesitated, he eventually complied,but then attempted to reach into the right front pocket of his pants. The officer put petitioner in abody hold and, after placing him in mechanical restraints, reached into petitioner's pocket andrecovered a small piece of wax paper containing a brown colored substance that tested positivefor heroin. The officer also found two pieces of wire and a three-band stereo equalizer. Petitionerwas then ordered to undergo a urinalysis test, but failed to provide a urine specimen for testingwithin a three-hour period. As a result of the foregoing, petitioner was charged in threemisbehavior reports with numerous prison disciplinary rule violations. Following a tier IIIdisciplinary hearing on the charges contained in all of the reports, he was found guilty of creatinga disturbance, possessing an altered item, interfering with an employee, refusing a direct order(two counts), refusing a frisk, possessing drugs and violating urinalysis testing procedures. Thedetermination was affirmed on administrative appeal, resulting in this CPLR article 78 [*2]proceeding.
Contrary to petitioner's claim, we do not find that there are significant gaps in the hearingtranscript that preclude meaningful review (see Matter of Machicote v Bezio, 87 AD3d 763, 764 [2011]; Matter of Sital v Fischer, 72 AD3d1306, 1307 [2010], lv dismissed 15 NY3d 823 [2010]; Matter of Abreu v Bezio, 71 AD3d1341, 1342 [2010], appeal dismissed 15 NY3d 836 [2010]). Upon perusing therecord, we conclude that the testimony adduced at the hearing, together with the threemisbehavior reports, positive test results and related documentation, provide substantial evidencesupporting the determination of guilt (see Matter of Davis v Prack, 58 AD3d 977, 977[2009]; Matter of Martino v Goord,38 AD3d 958, 958 [2007]). The conflicting testimony of petitioner and his inmate witnesspresented a credibility issue for the Hearing Officer to resolve (see Matter of Truman v Fischer, 75AD3d 1019, 1020 [2010]; Matter ofBosquet v Bezio, 69 AD3d 1257, 1258 [2010]).
We are also unpersuaded by petitioner's claim that the chain of custody of the contrabandwas not properly established (see Matter of Martino v Goord, 38 AD3d at 958-959; Matter of Rios v Selsky, 32 AD3d632, 633 [2006]). While petitioner contends that the request for test form was not properlycompleted, our review indicates that it complied with the regulatory requirements (see 7NYCRR 1010.4) and the 45-minute delay between the recovery and testing of the contrabandwas adequately explained by the correction officer who recovered it and indicated that it was inhis possession the entire time. Likewise, it was not necessary for the bottom portion of the chainof evidence form to be completed as none of the substance was left after testing that requireddisposal. Petitioner's remaining contentions are either lacking in merit or unpreserved for ourreview because they are raised for the first time before this Court. Therefore, the determinationmust be confirmed.
Rose, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.