Opinion
520062
06-25-2015
In the Matter of Samuel WEEKES, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Program, Respondent.
Samuel Weekes, Marcy, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Samuel Weekes, Marcy, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, LYNCH and DEVINE, JJ.
Opinion Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence 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 committing an unhygienic act after a search of his cell allegedly uncovered the fingertip of a latex glove filled with urine. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
The misbehavior report and testimony from the correction officer that petitioner, in fact, admitted that the liquid was urine provides substantial evidence to support the determination of guilt (see Matter of Haughey v. Artus, 108 A.D.3d 956, 956, 968 N.Y.S.2d 747 [2013] ; Matter of Dushane v. Fischer, 102 A.D.3d 1043, 1043, 957 N.Y.S.2d 921 [2013] ). Although petitioner testified that the substance was water and denied that he made any incriminating admission to the correction officer, this created a credibility issue for the Hearing Officer to resolve (see Matter of Silverstein v. Bezio, 65 A.D.3d 1424, 1425, 886 N.Y.S.2d 509 [2009] ). To the extent that petitioner asserts that there was a violation of Department of Corrections and Community Supervision Directive No. 4910A (VII)(c) because the substance was improperly destroyed before the conclusion of the hearing, petitioner has failed to preserve this issue for this Court's review by not raising it at the hearing or on administrative appeal (see Matter of Cayenne v. Goord, 16 A.D.3d 782, 783, 790 N.Y.S.2d 762 [2005] ). Were we to consider such issue, we would find petitioner's reliance on Matter of Clark v. Fischer, 114 A.D.3d 1116, 981 N.Y.S.2d 187 (2014) to be misplaced, as the correction officer here testified that petitioner admitted that the liquid was urine.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.