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In the Matter of Jalaal Peoples v. Brian Fischer

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


February 2, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: December 12, 2011

Before: Rose, J.P., Lahtinen, Spain, 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.

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

We confirm. The misbehavior report, positive test results and testimony of the correction officer who performed the tests provide substantial evidence to support the determination of guilt (see Matter of Moss v Prack, 87 AD3d 1255, 1255-1256 [2011]; Matter of Polite v Fischer, 87 AD3d 1212, 1212 [2011]). We reject petitioner's claim that he was improperly denied the right to call a doctor or pharmacist as a witness inasmuch as he did not make such a request until after the disposition was rendered (see Matter of Reid v Fischer, 78 AD3d 1400, 1401 [2010]; Matter of Cooper v Goord, 284 AD2d 844, 845 [2001]). Petitioner's contention that the EMIT drug test, standing alone, was insufficient to substantiate the presence of drugs in his urine is unpreserved by his failure to raise it during the hearing (see Matter of Kalwasinski v Fischer, 87 AD3d 1187, 1188 [2011]; Matter of Daniel v Fischer, 86 AD3d 892, 893 [2011]).

Rose, J.P., Lahtinen, Spain, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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