In the Matter of Steven J. Boggs v. Martuscello

• Decision Date: 26 May 2011
• Citation: 923 N.Y.S.2d 369,84 A.D.3d 1667,2011 N.Y. Slip Op. 04341
• Parties: In the Matter of Steven J. BOGGS, Petitioner,v.Daniel MARTUSCELLO, as Acting Superintendent, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1667
923 N.Y.S.2d 369
2011 N.Y. Slip Op. 04341

In the Matter of Steven J. BOGGS, Petitioner,
v.
Daniel MARTUSCELLO, as Acting Superintendent, et al., Respondents.

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

May 26, 2011.

Steven J. Boggs, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.

[84 A.D.3d 1667] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

[84 A.D.3d 1668] During a routine inspection, correction officers intercepted and opened a package sent to petitioner by a female visitor. The package contained a book that appeared to have been tampered with and, upon further inspection, a quantity of marihuana was discovered concealed in the binding. Following further investigation, petitioner

[923 N.Y.S.2d 370]

was charged in a misbehavior report with conspiring to introduce contraband into the facility, soliciting others to smuggle contraband into the facility and violating facility package procedures. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored it, the documentary evidence and the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt ( see Matter of Houston v. Fischer, 69 A.D.3d 1086, 1086, 893 N.Y.S.2d 343 [2010]; Matter of Adorno v. Goord, 35 A.D.3d 930, 931, 825 N.Y.S.2d 573 [2006] ). Petitioner's assertion that a proper foundation for the drug test results was not established in accordance with 7 NYCRR 1010.5 is not preserved for our review due to his failure to raise it either at the hearing or on his administrative appeal ( see Matter of White v. Superintendent of Wyoming Correctional Facility, 69 A.D.3d 1180, 1181, 895 N.Y.S.2d 216 [2010]; see also Matter of Gargano v. Goord, 278 A.D.2d 716, 717, 718 N.Y.S.2d 102 [2000], lv. denied 96 N.Y.2d 716, 730 N.Y.S.2d 31, 754 N.E.2d 1114 [2001] ). Furthermore, we find no merit to his claim that he was not given proper notice of the misbehavior report inasmuch as...