Opinion
524970
12-14-2017
In the Matter of Rashid LALIVERES, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Rashid Laliveres, Albion, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Rashid Laliveres, Albion, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, 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 respondent finding petitioner guilty of violating certain prison disciplinary rules.
After observing another inmate enter and exit petitioner's cell, a subsequent pat frisk of that inmate revealed a SONY Walkman with petitioner's department identification number on it, and, upon further inspection, a correction officer found hidden inside the Walkman eight sublingual strips of suboxone. As a result, petitioner was charged in a misbehavior report with possession of contraband and drug possession. Following a tier III disciplinary hearing, he was found guilty of the charges, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, unusual incident report submitted for in camera review and the hearing testimony from the correction officer who discovered the contraband provide substantial evidence to support the determination of guilt (see Matter of Wendell v. Annucci, 149 A.D.3d 1430, 1430–1431, 51 N.Y.S.3d 707 [2017] ; see also 7 NYCRR 270.2 [B][14] [xiii], [xv] ). Petitioner's claim that there were no drugs inside of the Walkman when he tendered the device to another inmate created a credibility issue for the Hearing Officer to resolve (see Matter of Wallace v. Annucci, 153 A.D.3d 1499, 1500, 59 N.Y.S.3d 913 [2017] ; Matter of Oliver v. Fischer, 107 A.D.3d 1268, 1269, 967 N.Y.S.2d 248 [2013] ). To the extent that petitioner contends that the sublingual strips were not properly drug tested, the record establishes that the facility's nurse visually identified the contraband as the prescription drug suboxone, and, therefore, further drug testing was unnecessary (see 7 NYCRR 1010.4 [d], [e]; Matter of Bernard v. Annucci, 148 A.D.3d 1448, 1449, 50 N.Y.S.3d 189 [2017] ; Matter of Rivera v. Prack, 138 A.D.3d 1267, 1268, 28 N.Y.S.3d 351 [2016] ; Matter of Campbell v. Prack, 118 A.D.3d 1202, 1203, 986 N.Y.S.2d 896 [2014] ). Petitioner's challenge to the chain of custody was not raised at the hearing and, therefore, is not preserved for our review (see Matter of Coates v. Fischer, 108 A.D.3d 997, 998, 969 N.Y.S.2d 254 [2013] ; Matter of Torres v. Selsky, 8 A.D.3d 775, 775, 777 N.Y.S.2d 815 [2004] ). We have reviewed petitioner's remaining contentions and find them to be without merit.ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.