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Bonner v. Director of Special Housing and Inmate Disciplinary Programs

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


September 24, 2009

IN THE MATTER OF DERRICK BONNER, PETITIONER,
v.
DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: August 3, 2009

Before: Peters, J.P., Spain, Kane, McCarthy and Garry, JJ.

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During a strip frisk, petitioner surrendered two rubber glove tips containing substances that tested positive for marihuana and heroin. He was charged in a misbehavior report with smuggling and drug possession. Petitioner was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Petitioner raises a number of claims, including that the chain of custody form was not fully completed in accordance with 7 NYCRR 1010.4, in support of his challenge to the determination of guilt. Petitioner, however, did not raise this claim nor any of his other claims at the disciplinary hearing. Accordingly, he has failed to preserve them for our review (see Matter of Brower v Venettozzi, 60 AD3d 1176, 1177 [2009], lv denied 12 NY3d 715 [2009]; Matter of Tafari v Selsky, 56 AD3d 912, 913 [2008], lv denied 12 NY3d 701).

Peters, J.P., Spain, Kane, McCarthy and Garry, JJ., concur.

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

20090924

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