Matter of Luis Morales v Donald Selsky

Matter of Morales v Selsky 2003 NY Slip Op 18962 [1 AD3d 848] November 26, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of Luis Morales, Appellant,
v
Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

— Appeal from a judgment of the Supreme Court (Canfield, J.), entered September 4, 2002 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting inmates from the unauthorized possession of a controlled substance. The misbehavior report relates that a frisk of petitioner disclosed a powdered substance, subsequently identified as brown heroin, hidden in his sock. Substantial evidence of petitioner's guilt was presented at his disciplinary hearing in the form of the misbehavior report, the positive laboratory test results and the hearing testimony given by the correction officer who authored the misbehavior report based upon his discovery of the contraband (see Matter of Smith v Selsky, 294 AD2d 629 [2002]). Additional evidence was provided by the testimony of the correction sergeant who had ordered the frisk.

On this appeal, petitioner contends that it was error to deny his request to present the hearing testimony of a third correction officer. The record reveals that this officer was not present at the time the controlled substance was discovered and that his testimony was properly excluded as irrelevant to the issue of petitioner's guilt or innocence (see Matter of Santana v Senkowski, 269 AD2d 638 [2000]). Petitioner further objects to the absence of testimony from a certain inmate witness; however, petitioner failed to affirmatively request this inmate as a witness at the hearing. Accordingly, the lack of his testimony cannot be construed as an error on the part of the Hearing Officer (see Matter of Alejandro v Goord, 278 AD2d 731 [2000]). The remaining issues raised by petitioner have been examined and found to be without merit.

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.