Opinion
525305
03-22-2018
In the Matter of Vladymir CAMPOS, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Vladymir Campos, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Vladymir Campos, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Pritzker, JJ.
MEMORANDUM AND JUDGMENTProceeding 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 finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with using a controlled substance after his urine sample twice tested positive for the presence of opiates. After a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was upheld on administration appeal, with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. Petitioner's contention that he was denied the right to call as a witness an employee of the company that manufactures the urinalysis testing equipment is without merit. The record reflects that the Hearing Officer personally contacted the company, explained to petitioner that the company had refused to produce an employee to testify at the hearing and provided petitioner with a written form reflecting this information (see Matter of Shepherd v. Annucci, 153 A.D.3d 1495, 1497, 61 N.Y.S.3d 386 [2017], appeal dismissed and lv. denied 30 N.Y.3d 1093, 69 N.Y.S.3d 860, 92 N.E.3d 1250 [2018]; Matter of Streeter v. Annucci, 145 A.D.3d 1300, 1301, 44 N.Y.S.3d 242 [2016] ). Petitioner's related claims that the Hearing Officer violated 7 NYCRR 254.6(a)(2) by contacting the company during an adjournment and improperly investigating the case are without merit (see Matter of Berrios v. Kuhlmann, 143 A.D.2d 475, 476–477, 532 N.Y.S.2d 593 [1988] ). Further, the record belies petitioner's claim that the Hearing Officer predetermined his guilt or that the determination flowed from any alleged bias (see Matter of Marino v. Racette, 144 A.D.3d 1277, 1278, 40 N.Y.S.3d 281 [2016], lv dismissed 29 N.Y.3d 1025, 55 N.Y.S.3d 159, 77 N.E.3d 895 [2017] ; Matter of Cato v. Annucci, 127 A.D.3d 1481, 1481, 5 N.Y.S.3d 916 [2015] ).
Contrary to petitioner's contention, he was provided with all of the testing documentation required to be disclosed (see 7 NYCRR 1020.4 [f][1][iv]; Matter of Rosario v. Prack, 119 A.D.3d 1302, 1302, 989 N.Y.S.2d 704 [2014] ; Matter of Jones v. Venettozzi, 114 A.D.3d 980, 981, 979 N.Y.S.2d 718 [2014] ). In any event, the correction officer who performed the two urinalysis tests testified that he was certified to perform the tests and that the proper testing procedures were followed, thus providing a proper basis for the Hearing Officer to rely on the test results (cf. Matter of Shepherd v. Fischer, 63 A.D.3d 1473, 1473, 884 N.Y.S.2d 777 [2009] ; compare Matter of Booker v. Ercole, 72 A.D.3d 1369, 1370, 901 N.Y.S.2d 719 [2010], appeal dismissed 26 N.Y.3d 1133, 27 N.Y.S.3d 496, 47 N.E.3d 776 [2016] ). Petitioner's remaining contentions have been reviewed and found to be similarly lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., Egan Jr., Lynch, Mulvey and Pritzker, JJ., concur.