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In the Matter of Anthony v. Brian Fischer

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


July 28, 2011

IN THE MATTER OF ANTHONY DANIEL, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 8, 2011

Before: Peters, J.P., Spain, 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of THC. He was found guilty of this charge at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. 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 officer who conducted the test, provide substantial evidence supporting the determination of guilt (see Matter of Coleman v Fischer, 81 AD3d 1018 [2011]; Matter of Shannon v Fischer, 73 AD3d 1373, 1374 [2010], lv denied 15 NY3d 708 [2010]). Contrary to petitioner's claim, the chain of custody of the sample was adequately established by the testimony of the testing officer and the information contained on the request for urinalysis test form (see Matter of Coleman v Fischer, 81 AD3d at 1018; Matter of Stanford v Fischer, 77 AD3d 1013, 1014 [2010]). Moreover, inasmuch as the determination was not based upon any confidential information, it was not incumbent upon the Hearing Officer to independently assess the credibility of the confidential source (see Matter of McAdoo v Goord, 32 AD3d 1058, 1059 [2006]; Matter of Arnett v Goord, 305 AD2d 832 [2003]). Furthermore, there is no indication that the transcript of the disciplinary hearing contains omissions that are so significant as to preclude meaningful review (see Matter of Reese v Bezio, 75 AD3d 1029, 1030 [2010]; Matter of Shabazz v Selsky, 12 AD3d 795, 795 [2004]). Petitioner's remaining contentions are either unpreserved for our review given his failure to raise them at the disciplinary hearing (see Matter of Haughey v Fischer, 76 AD3d 733, 734 [2010]; Matter of Brower v Venettozzi, 60 AD3d 1176, 1177 [2009], lv denied 12 NY3d 715 [2009]) or have been reviewed and found unavailing.

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

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110728

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