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Horne v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 19, 2009

IN THE MATTER OF REGINALD HORNE, 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., Mercure, Lahtinen, Malone Jr. and McCarthy, JJ.

MEMORANDUM AND JUDGMENT

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

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of drug use. We now confirm.

The determination of guilt is supported by substantial evidence including the misbehavior report and positive drug test results and related documentation (see Matter of Castillo v Goord, 46 AD3d 1060, 1061 [2007]). Although the misbehavior report erroneously indicated that petitioner tested positive for THC instead of correctly referencing opiates this inadvertent error was sufficiently explained by the reporting correction officer during his hearing testimony (see Matter of Harrison v Fischer, 56 AD3d 917, 917 [2008]). Petitioner's remaining contentions are unpreserved for our review.

Cardona, P.J., Mercure, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

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

20090319

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