Opinion
2012-02-2
In the Matter of Jalaal PEOPLES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Jalaal Peoples, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.
Jalaal Peoples, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh 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 charged in a misbehavior report with the use of a controlled substance. He was found guilty following a tier III disciplinary hearing and that determination was administratively affirmed, prompting this CPLR article 78 proceeding.
We confirm. The misbehavior report, positive test results and testimony of the correction officer who performed the tests provide substantial evidence to support the determination of guilt ( see Matter of Moss v. Prack, 87 A.D.3d 1255, 1255–1256, 930 N.Y.S.2d 311 [2011]; Matter of Polite v. Fischer, 87 A.D.3d 1212, 1212, 929 N.Y.S.2d 782 [2011] ). We reject petitioner's claim that he was improperly denied the right to call a doctor or pharmacist as a witness inasmuch as he did not make such a request until after the disposition was rendered ( see Matter of Reid v. Fischer, 78 A.D.3d 1400, 1401, 911 N.Y.S.2d 492 [2010]; Matter of Cooper v. Goord, 284 A.D.2d 844, 845, 726 N.Y.S.2d 598 [2001] ). Petitioner's contention that the EMIT drug test, standing alone, was insufficient to substantiate the presence of drugs in his urine is unpreserved by his failure to raise it during the hearing ( see Matter of Kalwasinski v. Fischer, 87 A.D.3d 1187, 1188, 929 N.Y.S.2d 511 [2011]; Matter of Daniel v. Fischer, 86 A.D.3d 892, 893, 927 N.Y.S.2d 480 [2011] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.