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In the Matter of Carlos Pujals v. Brian Fischer

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


August 4, 2011

IN THE MATTER OF CARLOS PUJALS, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: June 8, 2011

Before: Mercure, J.P., Rose, Malone Jr., 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a urinalysis test that produced a positive result, petitioner was charged in a misbehavior report with violating a prison disciplinary rule prohibiting drug use. At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of the charge and that determination was upheld on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, test results and other supporting documentation provide substantial evidence supporting the determination of guilt (see Matter of Hill v Smith, 73 AD3d 1418, 1418 [2010]; Matter of White v Superintendent of Wyoming Correctional Facility, 69 AD3d 1180, 1181 [2010]; Matter of Martinez v Goord, 48 AD3d 851, 851 [2008]). Petitioner's contention that the misbehavior report was incomplete or contained errors is not preserved for our review inasmuch as he failed to raise these issues at the hearing (see Matter of Colon v Goord, 58 AD3d 968, 969 [2009]; Matter of Smith v Dubray, 11 AD3d 839, 840 [2004];) and, in any event, is without merit. We do not agree with petitioner's contention that he was improperly denied daily worksheets of his past urinalysis tests because those documents were not relevant to the present charge (see Matter of Mullen v Superintendent of Southport Correctional Facility, 29 AD3d 1244, 1244-1245 [2006]; Matter of McCorkle v Bennett, 8 AD3d 918, 919 [2004]). To the extent that petitioner claims that the decision was affected by hearing officer bias, this claim is not substantiated by the record (see Matter of Lopez v Fischer, 60 AD3d 1180, 1180 [2009]; Matter of Williams v Fischer, 52 AD3d 1005, 1006 [2008]; Matter of McCorkle v Bennett, 8 AD3d at 919). Petitioner's remaining contentions have been reviewed and found to be without merit.

Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur.

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

Robert D. Mayberger Clerk of the Court

ENTER:

20110804

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