Opinion
2011-11-10
In the Matter of Craig MOBAYED, Petitioner,v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Craig Mobayed, Comstock, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Craig Mobayed, Comstock, 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 respondent which found petitioner guilty of violating a prison disciplinary rule.
After petitioner's urine twice tested positive for cannabinoids, he was served with a misbehavior report charging him with the use of a controlled substance. Petitioner was found guilty following a tier III disciplinary hearing and that determination was administratively affirmed. He then commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who performed the testing and the positive test results provide substantial evidence of petitioner's guilt ( see Matter of Hughes v. Bezio, 84 A.D.3d 1598, 1598, 924 N.Y.S.2d 298 [2011]; Matter of Ellison v. Fischer, 79 A.D.3d 1538, 1538–1539, 917 N.Y.S.2d 325 [2010] ). The discrepancy on various forms as to the time when the first test was performed was adequately explained as a clerical error by the correction officer who performed the tests, and there is no evidence that such error undermined 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] ).
Turning to the procedural claims, any defect in assistance was remedied by the Hearing Officer during the hearing when he provided petitioner with a copy of the requested directive and adjourned the hearing in order to give petitioner an opportunity to prepare his defense ( see Matter of Faublas v. Rock, 85 A.D.3d 1519, 1520, 925 N.Y.S.2d 923 [2011]; Matter of Reid v. Fischer, 80 A.D.3d 1035, 1035, 915 N.Y.S.2d 390 [2011] ). Finally, the Hearing Officer did not err in denying petitioner's request to call his assistant as a witness inasmuch as the proposed testimony would have been irrelevant to the charges ( see Matter of Canty v. Esgrow, 83 A.D.3d 1322, 1322–1323, 921 N.Y.S.2d 410 [2011], lv. denied 17 N.Y.3d 705, 2011 WL 2566523 [2011]; Matter of Tafari v. Fischer, 78 A.D.3d 1405, 1406–1407, 913 N.Y.S.2d 777 [2010], lv. denied 16 N.Y.3d 704, 2011 WL 501326 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.