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In the Matter of Doran Evans v. Norman R. Bezio

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


May 19, 2011

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

MEMORANDUM AND JUDGMENT

Calendar Date: April 6, 2011

Before: Mercure, J.P., Rose, Kavanagh, Stein and Egan Jr., 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.

After his urine sample twice tested positive for opiates, petitioner was charged in a misbehavior report with drug use. Following a tier III disciplinary hearing, at which petitioner declined to present evidence or call witnesses, he was found guilty of the charge and that determination was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, positive test results and supporting documentation provide substantial evidence to support the determination of guilt (see Matter of Coleman v Fischer, 81 AD3d 1018 [2011]; Matter of Hill v Smith, 73 AD3d 1418, 1418 [2010]). With regard to petitioner's procedural contentions, including that he was denied certain documentation and that the Hearing Officer failed to consult medical personnel, we find them unpreserved by petitioner's failure to object during the hearing, when the alleged deficiencies could have been addressed (see Matter of Latham v Taylor, 80 AD3d 1044 [2011]; Matter of Hamilton v Bezio, 76 AD3d 1125, 1126 [2010]).

Mercure, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur.

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

ENTER: Robert D. Mayberger Clerk of the Court

20110519

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