Matter of Quinones v Fischer

Matter of Quinones v Fischer 2009 NY Slip Op 08735 [67 AD3d 1285] November 25, 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 William Quinones, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] William Quinones, Dunkirk, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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.

Three days before being released on parole, petitioner was charged in a misbehavior report with possession of marihuana after a green leafy substance was found hidden in his locker during a cube frisk. Following a tier III disciplinary hearing, petitioner was found guilty. On administrative appeal, respondent affirmed the determination but reduced the penalty. Petitioner, thereafter, commenced this CPLR article 78 proceeding.

The misbehavior report, together with the hearing testimony and the drug test documentation, provide substantial evidence supporting the determination of guilt (see Matter of Batts v Fischer, 60 AD3d 1129, 1129 [2009]; Matter of Diaz v Goord, 26 AD3d 561, 562 [2006]). Petitioner's assertion that the drugs were not his and had been planted by someone else presented a credibility issue for the Hearing Officer to resolve (see Matter of Batts v Fischer, 60 AD3d at 1129; Matter of Costner v Goord, 31 AD3d 1082, 1083 [2006]).

Petitioner contends that the form submitted to request testing of the substance found in [*2]his cube was improperly completed by correction officers (see 7 NYCRR 1010.4 [b]). We find that the information entered thereon, as confirmed by hearing testimony and supplemented by other documentation, was sufficient to satisfy the applicable regulations (see Matter of Davila v Selsky, 305 AD2d 953, 953 [2003]). Finally, petitioner's claim that he was deprived of his right to view the search of his cube was not preserved for our review; petitioner did not raise it at the hearing or in his administrative appeal (see Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]; Matter of Colon v Goord, 274 AD2d 732, 732 [2000]). Petitioner's remaining contentions have been considered and found lacking in merit.

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