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Vargas v. Bezio

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


January 14, 2010

IN THE MATTER OF ANTHONY VARGAS, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, 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.

Petitioner was charged with violating the prison disciplinary rule prohibiting the use of a controlled substance after a sample of his urine twice tested positive for the presence of THC. He was found guilty of this charge following a tier III disciplinary hearing. The determination was thereafter affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the positive urinalysis test results and related documentation, as well as the testimony of the correction officers involved, provide substantial evidence supporting the determination of guilt (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]). Contrary to petitioner's claim, the correction officer who tested petitioner's urine sample adequately explained that the misinformation appearing on the test documentation was the result of clerical errors which did not undermine the validity of the positive test results (see Matter of Harrison v Fischer, 56 AD3d 917, 917 [2008]; Matter of Victor v Goord, 309 AD2d 1026 [2003]). Petitioner's assertion that he was denied a fair hearing has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Britt v Fischer, 54 AD3d 1087 [2008]; Matter of Newsome v Selsky, 26 AD3d 565, 566 [2006]).

Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

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

20100114

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