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Perez v. Bezio

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF JOSE PEREZ, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Peters, J.P., Kane, Malone Jr., 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 a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of possessing marihuana in violation of a prison disciplinary rule. After an administrative affirmance, petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm. The misbehavior report, hearing testimony and positive test results provide substantial evidence to support the determination of guilt (see Matter of Davis v Prack, 58 AD3d 977, 977 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]). By failing to request the testimony of the correction officer who tested the substance or to object to a lack of foundation for admission of the test results, petitioner waived his right to contest the accuracy of the positive results (see Matter of Boatwright v McGinnis, 24 AD3d 1136, 1137 [2005]; cf. Matter of Hernandez v Selsky, 306 AD2d 595, 596 n [2003], lv denied 100 NY2d 514 [2003]). Petitioner's remaining contention has been considered and found to be without merit.

Peters, J.P., Kane, Malone Jr., McCarthy and Garry, JJ., concur.

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

20091119

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