From Casetext: Smarter Legal Research

Valerio v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Jun 19, 2003
306 A.D.2d 713 (N.Y. App. Div. 2003)

Opinion

92393

Decided and Entered: June 19, 2003.

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.

Wilfredo Valerio, Auburn, petitioner pro se.

Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

Before: Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ.


MEMORANDUM AND JUDGMENT

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized use of controlled substances after two urinalysis tests produced positive results for the presence of cannabinoids. Substantial evidence of petitioner's guilt was presented at his disciplinary hearing in the form of the misbehavior report, the positive urinalysis test results with their accompanying documentation and the testimony of a correction officer, certified as a master trainer in the use of SYVA ETS urinalysis equipment (see Matter of Schnittker v. Selsky, 288 A.D.2d 794; Matter of Morales v. Selsky, 281 A.D.2d 658, lv denied 96 N.Y.2d 713). The officer refuted petitioner's contention that the second urinalysis test results were invalid because his urine sample had been frozen for 10 days prior to testing.

We reject petitioner's contention that his due process rights were violated because the correction officers who conducted the urinalysis testing did not testify at his hearing. By failing to request the appearance of these officers as witnesses, petitioner waived his right to present their testimony (see Matter of Harris v. Goord, 273 A.D.2d 599, 600, lv dismissed 95 N.Y.2d 917). The remaining issues raised herein have been reviewed and found to be without merit.

Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur.

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


Summaries of

Valerio v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Jun 19, 2003
306 A.D.2d 713 (N.Y. App. Div. 2003)
Case details for

Valerio v. Selsky

Case Details

Full title:IN THE MATTER OF WILFREDO VALERIO, Petitioner, v. DONALD SELSKY, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 19, 2003

Citations

306 A.D.2d 713 (N.Y. App. Div. 2003)
760 N.Y.S.2d 696

Citing Cases

Lorino v. Murphy

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that…

In the Matter of Felton v. Selsky

MEMORANDUM AND JUDGMENT Petitioner was found guilty of violating the prison disciplinary rule prohibiting…