Opinion
2012-04-19
In the Matter of Dominic TUCCI, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Dominic Tucci, Malone, petitioner pro se.
Dominic Tucci, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.Before: MERCURE, J.P., ROSE, SPAIN, STEIN and GARRY, JJ.
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 opiates. He was found guilty of the charge following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive urinalysis test results and related documentation, together with the testimony of the correction officers who collected and tested the specimen, provide substantial evidence supporting the determination of guilt ( see Matter of Demarta v. Prack, 85 A.D.3d 1475, 1476, 926 N.Y.S.2d 211 [2011]; Matter of Stanford v. Fischer, 77 A.D.3d 1013, 1013, 908 N.Y.S.2d 760 [2010] ). Petitioner has not preserved his contention that he was improperly denied a witness inasmuch as he did not object at the hearing ( see Matter of Barclay v. Knowles, 79 A.D.3d 1550, 1551, 914 N.Y.S.2d 347 [2010]; Matter of Brown v. Venettozzi, 79 A.D.3d 1510, 1511, 912 N.Y.S.2d 467 [2010] ). Furthermore, his claim that he is entitled to reimbursement for the value of property allegedly lost during his confinement to the special housing unit may not be raised in the context of the instant CPLR article 78 proceeding as such relief must be sought in the Court of Claims ( see Correction Law § 24[2]; Matter of Raqiyb v. Goord, 28 A.D.3d 892, 893, 813 N.Y.S.2d 251 [2006]; Matter of Harrison v. Carpenter, 201 A.D.2d 848, 848, 608 N.Y.S.2d 538 [1994] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.