Opinion
2012-03-15
In the Matter of Joseph FARALDO, Petitioner, v. Norman R. BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Joseph Faraldo, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Joseph Faraldo, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco 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.
After petitioner's urine twice tested positive for marihuana, he was charged in a misbehavior report with drug use. He was found guilty of that charge following a tier III disciplinary hearing and that determination was affirmed upon administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, positive drug tests and testimony from the correction officer who performed the tests provide substantial evidence to support the determination of guilt ( see Matter of Polite v. Fischer, 87 A.D.3d 1212, 1212, 929 N.Y.S.2d 782 [2011]; Matter of Blake v. Fischer, 87 A.D.3d 771, 772, 927 N.Y.S.2d 811 [2011] ). The alleged time discrepancies on the various testing forms were adequately explained by the testing officer and, therefore, did not undermine the validity of the test results ( see Matter of White v. Fischer, 85 A.D.3d 1483, 1483–1484, 925 N.Y.S.2d 903 [2011]; Matter of Garcia v. Fischer, 68 A.D.3d 1311, 1312, 890 N.Y.S.2d 201 [2009] ). Furthermore, there is no evidence that petitioner was prejudiced by the Hearing Officer's off-the-record conversation with the correction officer inasmuch as he informed petitioner of its nature, and subsequently called the officer to testify a second time and gave petitioner the opportunity to question her about her testimony ( see Matter of Brown v. Cunningham, 17 A.D.3d 886, 887, 793 N.Y.S.2d 299 [2005], lv. denied 5 N.Y.3d 705, 801 N.Y.S.2d 251, 834 N.E.2d 1261 [2005]; Matter of Collucci v. Goord, 305 A.D.2d 825, 825, 758 N.Y.S.2d 549 [2003] ). Finally, the record demonstrates that the finding of guilt was premised on the evidence presented at the hearing, rather than any alleged hearing officer bias ( see Matter of Argentieri v. Fischer, 87 A.D.3d 1242, 1242–1243, 929 N.Y.S.2d 889 [2011] ).
Petitioner's remaining contentions, to the extent that they are preserved for our review, have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.