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White v. Superintendent of Wyoming Correctional Facility

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


January 21, 2010

IN THE MATTER OF HASSHEIM WHITE, PETITIONER,
v.
SUPERINTENDENT OF WYOMING CORRECTIONAL FACILITY ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: November 30, 2009

Before: Cardona, P.J., Mercure, Spain, 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was required to submit to a drug test after a correction officer smelled marihuana emanating from the group of prisoners with whom he was congregating in the yard. After petitioner's urine sample twice tested positive for cannabinoids, he was served with a misbehavior report charging him with drug use. Petitioner was found guilty following a tier III disciplinary hearing and his administrative appeal was unavailing. Thereafter, he commenced this CPLR article 78 proceeding seeking annulment.

We confirm. To the extent that petitioner challenges the determination on the ground that it was not supported by substantial evidence, we find the misbehavior report and positive test results to be sufficient to establish his guilt (see Matter of Stallone v Fischer, 65 AD3d 1410 [2009]; Matter of Karapetian v Fischer, 65 AD3d 772 [2009]). Petitioner's contention that the test results were erroneously introduced into evidence because the proper documentation had not been supplied is not preserved for our review, inasmuch as he failed to object to their introduction either at the hearing or on administrative appeal (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]; Matter of Ross v Selsky, 49 AD3d 1065, 1065 [2008]). Petitioner's claim that he was refused the right to call witnesses is controverted by the hearing record, which evidences that he was asked by the Hearing Officer several times whether he would like to call witnesses and each time declined to do so (see Matter of Riley v Fischer, 58 AD3d 976, 976 [2009]; Matter of Daniels v Goord, 38 AD3d 1073 [2007]). Finally, our review of the hearing transcript, which contains minor gaps and omissions, indicates that it was not so incomplete as to preclude meaningful review (see Matter of Johnson v Rock, 64 AD3d 1096 [2009]; Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lv denied 13 NY3d 709 [2009]).

We have examined petitioner's remaining claims and have found them to be either unpreserved or without merit.

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

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

20100121

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