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Giap v. Fischer

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


January 14, 2010

IN THE MATTER OF THANH GIAP, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Spain, Lahtinen, Malone Jr. 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

After petitioner twice tested positive for marihuana, he was served with a misbehavior report charging him with drug use. A tier III disciplinary hearing ensued, after which petitioner was found guilty. Upon administrative appeal, the determination was affirmed, but the penalty assessed to petitioner was greatly reduced. He then commenced this CPLR article 78 proceeding to challenge both the determination and the penalty imposed.

We confirm. To the extent that petitioner argues that the determination was not supported by substantial evidence, the misbehavior report, positive drug tests and testimony at the hearing substantiated the determination (see Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]). Additionally, we find the testimony of the correction officers who both collected the sample from petitioner and tested it sufficiently established that the chain of custody was properly maintained (see Matter of Smith v Fischer, 54 AD3d 1083, 1084 [2008]; Matter of McAdoo v Goord, 32 AD3d 1058, 1058-1059 [2006]). Contrary to petitioner's contention, the fact that the Hearing Officer warned petitioner that if he continued to disrupt the proceedings he would be removed did not demonstrate bias, nor does the record show other indications that the determination flowed from any alleged bias (see Matter of Fontaine v Superintendent of Southport Correctional Facility, 35 AD3d 1113, 1114 [2006], appeal dismissed 8 NY3d 943 [2007]; Matter of Barca v Goord, 19 AD3d 772, 773 [2005], lv denied 5 NY3d 710 [2005]). Lastly, we are unpersuaded by petitioner's claim that his penalty was so severe as to shock one's sense of fairness, particularly in light of the fact that it was reduced on administrative appeal to less than half of what the Hearing Officer had originally imposed (see Matter of Martinez v Goord, 48 AD3d 851, 851 [2008]; Matter of Rivera v Goord, 38 AD3d 964, 964-965 [2007]).

We have examined petitioner's remaining contentions, including that he did not receive proper employee assistance, and find them to be either unpreserved for our review or without merit.

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

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

20100114

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