Matter of Pitts v Fischer

Matter of Pitts v Fischer 2008 NY Slip Op 06534 [54 AD3d 477] August 7, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 24, 2008

In the Matter of Lance Pitts, Petitioner, v Brian S. Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Lance Pitts, Auburn, 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 commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of illicit drug use. We now confirm.

The misbehavior report, together with the positive drug test results and testimony adduced at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Hayes v Goord, 26 AD3d 546, 546 [2006]). Contrary to petitioner's assertion, the Hearing Officer did not improperly remove him from the hearing. The record reveals that, despite warnings from the Hearing Officer, petitioner repeatedly interrupted the Hearing Officer and disrupted the proceedings (see Matter of Acevedo v Goord, 32 AD3d 1143, 1144-1145 [2006]). Petitioner's remaining contentions, including his claim that the chain of custody was deficient, have been considered and found to be unavailing.

Mercure, J.P., Peters, Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.