Opinion
Decided and Entered: June 15, 2000
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 Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Cyril Beckles, Elmira, petitioner in person.
Eliot Spitzer, Attorney-General (Gina M. Ciccone of counsel), Albany, for respondent.
Before: Crew III, J.P., Spain, Carpinello, Graffeo and Rose, JJ.
MEMORANDUM AND JUDGMENT
Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule prohibiting inmates from using controlled substances after his urine twice tested positive for the presence of cannabinoids. This proceeding seeks annulment of the determination of his guilt based on various alleged procedural errors.
Supreme Court improperly transferred the proceeding on substantial evidence grounds inasmuch as petitioner raises solely procedural issues in the petition (see, Matter of Barnhill v. Coombe, 239 A.D.2d 719, 720 n 1). Nevertheless, we shall retain jurisdiction and review the merits in the interest of judicial economy (see,Matter of Nieves v. Goord, 262 A.D.2d 1042).
Contrary to petitioner's assertion, we do not find that he was improperly denied the right to call various witnesses inasmuch as the record supports the Hearing Officer's conclusion that their testimony would be irrelevant to the controlled substance charge (see, Matter of Williams v. Goord, 270 A.D.2d 744, 705 N.Y.S.2d 129;Matter of Fletcher v. Murphy, 249 A.D.2d 638).
Next, petitioner's contention that an inadequate evidentiary foundation was laid for the introduction of the urinalysis test results is unpreserved for our review, having been raised for the first time in his brief before this court (see, Matter of Johnson v. Goord, 260 A.D.2d 816; Matter of Stanislas v. Senkowski, 253 A.D.2d 972).
In any event, were we to consider the merits, we would find that such claim is belied by the record which indicates that the requirements of 7 NYCRR 1020.5 (a) (1) were reasonably complied with (see, Matter of Hein v. Goord, 249 A.D.2d 661; Matter of Frazier v. Coombe, 224 A.D.2d 794).
The record further provides ample evidence to support the Hearing Officer's decision to remove petitioner from the hearing once he became disruptive, argumentative and uncooperative (see,Matter of Dumpson v. McGinnis, 247 A.D.2d 804; Matter of Joyce v. Goord, 246 A.D.2d 926). Finally, petitioner's claim of Hearing Officer bias, to the extent preserved for our review, has been examined and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.