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In the Matter of Joseph v. Norman R. Bezio

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


March 15, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: January 23, 2012

Before: Mercure, Acting P.J., Peters, Spain, Malone Jr. 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

After petitioner's urine twice tested positive for marihuana, he was charged in a misbehavior report with drug use. He was found guilty of that charge following a tier III disciplinary hearing and that determination was affirmed upon administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, positive drug tests and testimony from the correction officer who performed the tests provide substantial evidence to support the determination of guilt (see Matter of Polite v Fischer, 87 AD3d 1212, 1212 [2011]; Matter of Blake v Fischer, 87 AD3d 771, 772 [2011]). The alleged time discrepancies on the various testing forms were adequately explained by the testing officer and, therefore, did not undermine 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]). Furthermore, there is no evidence that petitioner was prejudiced by the Hearing Officer's off-the-record conversation with the correction officer inasmuch as he informed petitioner of its nature, and subsequently called the officer to testify a second time and gave petitioner the opportunity to question her about her testimony (see Matter of Brown v Cunningham, 17 AD3d 886, 887 [2005], lv denied 5 NY3d 705 [2005]; Matter of Collucci v Goord, 305 AD2d 825, 825 [2003]). Finally, the record demonstrates that the finding of guilt was premised on the evidence presented at the hearing, rather than any alleged hearing officer bias (see Matter of Argentieri v Fischer, 87 AD3d 1242, 1242-1243 [2011]).

Petitioner's remaining contentions, to the extent that they are preserved for our review, have been considered and found to be without merit.

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

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

ENTER:

Robert D. Mayberger

Clerk of the Court

20120315

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