Opinion
2013-11-27
In the Matter of Jerome ANDERSON, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jerome Anderson, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Walsh of counsel), for respondent.
Jerome Anderson, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Walsh 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 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.
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 A.D.3d 1170, 1170 n., 953 N.Y.S.2d 408 [2012] ).
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 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 A.D.3d 917, 917–918, 867 N.Y.S.2d 749 [2008]; Matter of Davis v. Goord, 268 A.D.2d 932, 932, 700 N.Y.S.2d 876 [2000], lv. denied 95 N.Y.2d 751, 711 N.Y.S.2d 153, 733 N.E.2d 225 [2000]; Matter of Kussius v. Walker, 247 A.D.2d 911, 912, 668 N.Y.S.2d 784 [1998] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
LAHTINEN, J.P., STEIN, SPAIN and EGAN JR., JJ., concur.