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Hernandez v. N.Y. State Dep't of Corr. & Cmty. Supervision

Supreme Court, Appellate Division, Third Department, New York.
Dec 13, 2018
167 A.D.3d 1206 (N.Y. App. Div. 2018)

Opinion

526566

12-13-2018

In the Matter of Armando HERNANDEZ, Petitioner, v. New York State DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

Armando Hernandez, New York City, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.


Armando Hernandez, New York City, petitioner pro se.

Barbara D. Underwood, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Clark, Mulvey and Pritzker, JJ.

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

After his urine twice tested positive for the presence of buprenorphine during a random drug test, petitioner was charged in a misbehavior report with using a controlled substance. He was found guilty of that charge following a tier III disciplinary hearing, and the determination was later affirmed on administrative review. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, positive urinalysis test results and related documentation, together with the hearing testimony of the correction officer who tested the sample, provide substantial evidence supporting the determination of guilt (see Matter of Morales v. Venettozzi, 163 A.D.3d 1375, 1376, 77 N.Y.S.3d 902 [2018] ; Matter of Guadalupe v. Venettozzi, 158 A.D.3d 883, 884, 70 N.Y.S.3d 591 [2018] ). Contrary to petitioner's argument, the information documented on the request for urinalysis form and the testimony of the correction officer who tested the sample established a proper chain of custody (see Matter of Morales v. Venettozzi, 163 A.D.3d at 1376, 77 N.Y.S.3d 902 ). Further, the correction officer adequately explained that a clerical photocopying error caused another inmate's name to appear at the top of the calibration report and confirmed that the positive test results and the calibration report were accurate, and the Hearing Officer was free to credit this testimony (see Matter of Ramos v. Annucci, 159 A.D.3d 1185, 1185–1186, 72 N.Y.S.3d 634 [2018] ; Matter of Snyder v. New York State Dept. of Corr. & Community Supervision, 157 A.D.3d 1172, 1173, 70 N.Y.S.3d 256 [2018] ). Finally, the record does not disclose that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Swinton v. Venettozzi, 164 A.D.3d 1584, 1585, 81 N.Y.S.3d 918 [2018] ). Petitioner's remaining claims have been examined and, to the extent that they are preserved, we find that they lack merit.

Garry, P.J., Egan Jr., Clark, Mulvey and Pritzker, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


Summaries of

Hernandez v. N.Y. State Dep't of Corr. & Cmty. Supervision

Supreme Court, Appellate Division, Third Department, New York.
Dec 13, 2018
167 A.D.3d 1206 (N.Y. App. Div. 2018)
Case details for

Hernandez v. N.Y. State Dep't of Corr. & Cmty. Supervision

Case Details

Full title:In the Matter of ARMANDO HERNANDEZ, Petitioner, v. NEW YORK STATE…

Court:Supreme Court, Appellate Division, Third Department, New York.

Date published: Dec 13, 2018

Citations

167 A.D.3d 1206 (N.Y. App. Div. 2018)
167 A.D.3d 1206
2018 N.Y. Slip Op. 8604

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