Opinion
09-29-2017
In the Matter of Jennifer WADE, Petitioner, v. D. VENETTOZZI, Director of Special Housing, Inmate Disciplinary Program, P. Barhite, Sorc/Hearing Officer, R. Goodman, Captain/Hearing Officer, and D. Sarratori, Correction Officer, Respondents.
Jennifer Wade, Petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for respondents.
Jennifer Wade, Petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for respondents.
Memorandum:
Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul a determination finding her guilty, following a tier III hearing, of violating inmate rule 113.24 ( 7 NYCRR 270.2 [B][14] [xiv] [drug use] ). Contrary to petitioner's contention, the testimony and evidence presented at the hearing, including the positive results of two urinalysis tests indicating the presence of opiates, constitute substantial evidence to support the determination (see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 138, 524 N.Y.S.2d 30, 518 N.E.2d 924 ). The conflicting testimony on the issue whether the positive test results were caused by the alleged consumption of poppy seed dressing raised an issue of credibility for resolution by the Hearing Officer (see e.g. Matter of Gonzalez v. Selsky, 301 A.D.2d 1019, 1019–1020, 753 N.Y.S.2d 759 ; Matter of Wood v. Selsky, 240 A.D.2d 876, 877, 658 N.Y.S.2d 723 ; see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ).
Petitioner failed to raise at the hearing her present contention that the correction officer who testified at the hearing concerning the results of the urinalysis tests was not a valid expert on the reliability of the drug testing process and thus failed to preserve that contention for our review (see Matter of Reeves v. Goord , 248 A.D.2d 994, 994–995, 670 N.Y.S.2d 151, lv. denied 92 N.Y.2d 804, 677 N.Y.S.2d 779, 700 N.E.2d 318 ). Furthermore, petitioner's contention concerning the withholding of her good time allowance at a subsequent proceeding is not properly before us. We have reviewed petitioner's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
WHALEN, P.J., SMITH, CARNI, DeJOSEPH, and CURRAN, JJ., concur.