Matter of Perez v Bezio

Matter of Perez v Bezio 2009 NY Slip Op 08532 [67 AD3d 1218] November 19, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Jose Perez, Petitioner, v Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Jose Perez, Napanoch, 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of possessing marihuana in violation of a prison disciplinary rule. After an administrative affirmance, petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm. The misbehavior report, hearing testimony and positive test results provide substantial evidence to support the determination of guilt (see Matter of Davis v Prack, 58 AD3d 977, 977 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]). By failing to request the testimony of the correction officer who tested the substance or to object to a lack of foundation for admission of the test results, petitioner waived his right to contest the accuracy of the positive results (see Matter of Boatwright v McGinnis, 24 AD3d 1136, 1137 [2005]; cf. Matter of Hernandez v Selsky, 306 AD2d 595, 596 n [2003], lv denied 100 NY2d 514 [2003]). Petitioner's remaining contention has been considered and found to be without merit.

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