Matter of Hayes v Fischer

Matter of Hayes v Fischer 2010 NY Slip Op 04299 [73 AD3d 1360] May 20, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

In the Matter of Ronald Hayes, Petitioner,
v
Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Ronald Hayes, Elmira, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 using a controlled substance after a sample of his urine twice tested positive for the presence of opiates. He was found guilty of the charge following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report, positive test results and related documentation, as well as the testimony adduced at the hearing, supports the determination of guilt (see Matter of Frye v Commissioner of Correctional Servs., 69 AD3d 1074, 1074 [2010]; Matter of Smart v Fischer, 67 AD3d 1222 [2009], lv denied 14 NY3d 705 [2010]). Petitioner's claim that the tests were inaccurate is belied by the testimony of the representative from the company that manufactured the testing apparatus. Moreover, we find no merit to petitioner's assertion that he was improperly denied documents given that the daily worksheet he requested did not exist (see Matter of Mullen v Superintendent of Southport Correctional Facility, 29 AD3d 1244, 1244 [2006]; Matter of Spirles v Goord, 308 AD2d 610, 611 [2003]). Finally, petitioner's contention that he was improperly denied witnesses has not been preserved due to his failure to object when they were not called despite his request for them [*2]at the commencement of the hearing (see Matter of Brown v Selsky, 49 AD3d 1108 [2008]; Matter of Polite v Goord, 49 AD3d 944 [2008]).

Cardona, P.J., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.