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In re Williams

Supreme Court of New York, Third Department

May 23, 2013

In the Matter of RANDY WILLIAMS, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: April 3, 2013

Randy Williams, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Stein, J.P., McCarthy, Garry and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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 possession of a controlled substance after a search of his cube uncovered a substance hidden in the radiator that tested positive for marihuana. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report and positive test result for marihuana provide substantial evidence to support the determination of guilt (see Matter of Shorter v Prack, 100 A.D.3d 1178, 1179 [2012]). Petitioner's remaining contentions — including that he was denied the right to call witnesses, denied documentary evidence and that Department of Corrections and Community Supervision procedures were not properly followed — were not raised at the hearing and, therefore, are unpreserved for our review (see Matter of Ayrhart v Fischer, 94 A.D.3d 1310, 1311 [2012]; Matter of Hamilton v Goord, 32 A.D.3d 642, 643 [2006], lv denied 7 N.Y.3d 715 [2006]).

Stein, J.P., McCarthy, Garry and Egan Jr., JJ., concur.

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


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