Matter of Anderson v Prack

Matter of Anderson v Prack 2013 NY Slip Op 07908 Decided on November 27, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 27, 2013
516376

[*1]In the Matter of JEROME ANDERSON, Petitioner,

v

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: October 22, 2013
Before: Lahtinen, J.P., Stein, Spain and Egan Jr., JJ.


Jerome Anderson, Pine City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Frank Walsh of counsel), for respondent.


MEMORANDUM AND JUDGMENT

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 Corrections and Community Supervision 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 cannabinoids. Following a tier III disciplinary hearing, petitioner was found guilty, and the determination was affirmed on administrative review. This CPLR article 78 proceeding ensued.[FN1]

We confirm. Contrary to petitioner's contention, he was not deprived of a fair hearing, inasmuch as the Hearing Officer's denial of his request for the training manual and other [*2]information from the manufacturer regarding the cleaning, maintenance and testing procedures of the SYVA/Emit Jr. urinalysis machine was not a denial of petitioner's due process rights (see Matter of Harrison v Fischer, 56 AD3d 917, 917-918 [2008]; Matter of Davis v Goord, 268 AD2d 932, 932 [2000], lv denied 95 NY2d 751 [2000]; Matter of Kussius v Walker, 247 AD2d 911, 912 [1998]).

Lahtinen, J.P., Stein, Spain and Egan Jr., JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed. Footnotes

Footnote 1: Although petitioner raised a substantial evidence question in his petition, that issue has been abandoned inasmuch as he failed to raise it in his brief (see Matter of Land v Fischer, 100 AD3d 1170, 1170 n [2012]).