Opinion
526242
09-27-2018
In the Matter of Robert BROWN, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Robert Brown, Alden, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Robert Brown, Alden, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ.
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 finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with drug use after his urine twice tested positive for THC 50 (cannabinoids). Following a tier III disciplinary hearing, petitioner was found guilty of the charge and a penalty was imposed. Upon administrative review, the determination was affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge the determination.
We confirm. The misbehavior report, positive urinalysis test results and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Buggsward v. Rodriguez, 160 A.D.3d 1320, 1320–1321, 75 N.Y.S.3d 349 [2018] ; Matter of Blunt v. Annucci, 155 A.D.3d 1226, 1226, 63 N.Y.S.3d 275 [2017] ). Although the request for urinalysis test form stated that the request was based upon "suspicion," the Hearing Officer did not rely on confidential information, and the circumstances leading to the test request were therefore irrelevant (see Matter of Smith v. Venettozzi, 145 A.D.3d 1277, 1278, 44 N.Y.S.3d 233 [2016], lv denied 29 N.Y.3d 910, 2017 WL 2435320 [2017] ; Matter of Selah v. LaValley, 117 A.D.3d 1261, 1261–1262, 984 N.Y.S.2d 895 [2014] ). Petitioner's claim that the proper urinalysis drug testing procedures were not followed, and that the positive drug test results were therefore not reliable, have not been preserved for our review due to his failure to adequately raise this issue at the disciplinary hearing (see Matter of LaGrave v. Venettozzi, 157 A.D.3d 1184, 1185, 70 N.Y.S.3d 587 [2018] ; Matter of Medina v. Five Points Corr. Facility, 153 A.D.3d 1471, 1473 n., 61 N.Y.S.3d 381 [2017] ; Matter of Monje v. Geoghegan, 108 A.D.3d 957, 957–958, 969 N.Y.S.2d 612 [2013] ). Finally, the record does not reveal that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Buggsward v. Rodriguez, 160 A.D.3d at 1321, 75 N.Y.S.3d 349 ; Matter of Lyons v. Annucci, 152 A.D.3d 1099, 1100, 56 N.Y.S.3d 477 [2017] ). Petitioner's remaining claims, to the extent that they are preserved for our review, have been reviewed and determined to also lack merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ., concur.