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Ortiz v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


July 30, 2009

IN THE MATTER OF GILBERT ORTIZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 10, 2009

Before: Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ.

Proceeding pursuant to CLPR 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.

Following a tier III hearing, petitioner was found guilty of possessing narcotics, refusing a direct order and interfering with an employee in violation of prison disciplinary rules. Following an administrative appeal, the decision was affirmed but his penalty was reduced, prompting petitioner to commence this CPLR article 78 proceeding to challenge his determination of guilt.

We confirm. The misbehavior report, drug test results and related documentation provide substantial evidence to support the determination of guilt (see Matter of Tayler v Selsky, 49 AD3d 1060, 1060 [2008]). Petitioner's testimony offering an alternate version of the underlying events created a credibility issue for the Hearing Officer to resolve (see id.). Furthermore, petitioner's contention that the foundation necessary for the admission of and reliance on the drug test results was inadequate is unpreserved for our review due to his failure to raise the issue at the hearing (see Matter of Lopez v Goord, 49 AD3d 1044, 1045 [2008], lv denied 11 NY3d 703 [2008]; Matter of Ross v Goord, 49 AD3d 1065, 1065 [2008]; Matter of Filpo v Goord, 37 AD3d 891, 892 [2007]).

Finally, we find no violation of Department of Correctional Services Directive No. 4910 (V) (C) (1). Petitioner's removal from the area prior to the search of his cell was necessary because entry to his cell was blocked by the placement of a broom in the opening of the cell door. In addition, as correction officers sought to enter the cell, petitioner was observed dropping items into the toilet and than flushing it to prevent their recovery (see Matter of McKethan v Selsky, 297 AD2d 840, 841 [2002]).

Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur.

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

20090730

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