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Lopez v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 12, 2009

IN THE MATTER OF JOSE LOPEZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: January 26, 2009

Before: Cardona, P.J., Peters, Kane, Kavanagh and Stein, JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination which found him guilty of drug use. We now confirm.

The misbehavior report, together with the positive urinalysis test results and related documentation, along with the testimony adduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Smith v Fischer, 54 AD3d 1083, 1084 [2008]). Petitioner's assertion that the Hearing Officer was biased is neither substantiated by the record nor is there any indication that the determination at hand flowed from any purported bias (see Matter of Liner v Fischer, 56 AD3d 1088, 1088 [2008], lv denied ___ NY3d ___ [Feb. 19, 2009]). We have examined petitioner's remaining contentions, including his claims that the chain of custody was defective and there was an insufficient foundation for the introduction into evidence of the test results, and, to the extent preserved, find them to be unavailing.

Cardona, P.J., Peters, Kane, Kavanagh and Stein, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20090312

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