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In the Matter of Craig Mobayed v. Brian Fischer

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


November 10, 2011

IN THE MATTER OF CRAIG MOBAYED, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Peters, J.P., Lahtinen, Kavanagh, Stein 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.

After petitioner's urine twice tested positive for cannabinoids, he was served with a misbehavior report charging him with the use of a controlled substance. Petitioner was found guilty following a tier III disciplinary hearing and that determination was administratively affirmed. He then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the correction officer who performed the testing and the positive test results provide substantial evidence of petitioner's guilt (see Matter of Hughes v Bezio, 84 AD3d 1598, 1598 [2011]; Matter of Ellison v Fischer, 79 AD3d 1538, 1538-1539 [2010]). The discrepancy on various forms as to the time when the first test was performed was adequately explained as a clerical error by the correction officer who performed the tests, and there is no evidence that such error undermined the validity of the test results (see Matter of White v Fischer, 85 AD3d 1483, 1483-1484 [2011]; Matter of Garcia v Fischer, 68 AD3d 1311, 1312 [2009]).

Turning to the procedural claims, any defect in assistance was remedied by the Hearing Officer during the hearing when he provided petitioner with a copy of the requested directive and adjourned the hearing in order to give petitioner an opportunity to prepare his defense (see Matter of Faublas v Rock, 85 AD3d 1519, 1520 [2011]; Matter of Reid v Fischer, 80 AD3d 1035, 1035 [2011]). Finally, the Hearing Officer did not err in denying petitioner's request to call his assistant as a witness inasmuch as the proposed testimony would have been irrelevant to the charges (see Matter of Canty v Esgrow, 83 AD3d 1322, 1322-1323 [2011], lv denied 17 NY3d 705 [2011]; Matter of Tafari v Fischer, 78 AD3d 1405, 1406-1407 [2010], lv denied 16 NY3d 704 [2011]).

Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20111110

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