Opinion
2013-12-26
In the Matter of Michael RICO, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Michael Rico, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Michael Rico, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
While refusing a correction officer's request to provide a urine specimen, petitioner displayed his middle finger and used profanity. As a result, he was charged in a misbehavior report with refusing a direct order, failing to comply with urinalysis testing procedures and harassment. Petitioner was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the misbehavior report and testimony of the correction officer who authored it, supports the determination of guilt ( see Matter of Sital v. Fischer, 72 A.D.3d 1306, 1307, 904 N.Y.S.2d 228 [2010], lv. dismissed15 N.Y.3d 823, 908 N.Y.S.2d 156, 934 N.E.2d 890 [2010]; Matter of Spulka v. Selsky, 36 A.D.3d 1183, 1184, 827 N.Y.S.2d 374 [2007] ). Petitioner contends that the officer did not follow the proper protocol by escorting him to “the facility infirmary, clinic or other appropriate area” for purposes of obtaining the urine specimen (7 NYCRR 1020.4[d][1] ). This, however, does not relieve petitioner of his obligation to comply with the officer's directive ( see Matter of Billue v. Goord, 28 A.D.3d 845, 846, 812 N.Y.S.2d 175 [2006] ) and any problem he had with it should have been pursued through the grievance procedure ( see Matter of Amaker v. Bezio, 98 A.D.3d 1146, 1147 n., 950 N.Y.S.2d 792 [2012] ). Petitioner's claims that he was improperly denied witnesses and documentary evidence and that the Hearing Officer was biased have not been preserved for our review due to his failure to raise them in his administrative appeal ( see Matter of Ventimiglia v. New York State Dept. of Correctional Servs., 94 A.D.3d 1327, 1328, 942 N.Y.S.2d 699 [2012]; Matter of Perez v. Fischer, 62 A.D.3d 1104, 1105, 879 N.Y.S.2d 232 [2009]; Matter of Lee v. Goord, 285 A.D.2d 716, 716, 727 N.Y.S.2d 348 [2001] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.