Monje v. Geoghegan

• Decision Date: 18 July 2013
• Citation: 108 A.D.3d 957,2013 N.Y. Slip Op. 05352,969 N.Y.S.2d 612
• Parties: In the Matter of Jorge MONJE, Petitioner, v. Michael P. GEOGHEGAN, as Deputy Superintendent of Security, Watertown Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 957

969 N.Y.S.2d 612

2013 N.Y. Slip Op. 05352

In the Matter of Jorge MONJE, Petitioner,

v.Michael P. GEOGHEGAN, as Deputy Superintendent of Security, Watertown Correctional Facility, Respondent.

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

July 18, 2013.

Jorge Monje, Ogdensburg, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: LAHTINEN, J.P., SPAIN, GARRY and EGAN JR., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

During a search of petitioner's locker, a correction officer found a ham tin containing three prescription bags and an unidentified substance in the finger of a plastic glove, the latter of which subsequently tested positive for methamphetamine. As a result, petitioner was charged in a misbehavior report with possessing unauthorized medication and possessing a controlled substance. At the conclusion of the tier III disciplinary hearing that followed, petitioner was found guilty of possessing a controlled substance and not guilty of possessing unauthorized medication, and a penalty was imposed. That determination was affirmed upon petitioner's administrative appeal, prompting him to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report and positive test results, together with the testimony adduced at the hearing, provide substantial evidence to support the determination of guilt ( see Matter of Smith v. Unger, 100 A.D.3d 1171, 1171, 953 N.Y.S.2d 906 [2012];Matter of Faraldo v. Bezio, 93 A.D.3d 1007, 1008, 939 N.Y.S.2d 893 [2012] ). Petitioner's denial that he possessed drugs presented a credibility determination for the Hearing Officer to resolve ( see Matter of Xao He Lu v. New York State Dept. of Corr., 72 A.D.3d 1379, 1380, 898 N.Y.S.2d 532 [2010] ). To the extent that petitioner challenges the foundation for the drug test results, contends that he was not provided with the appropriate testing documents or asserts that the Hearing Officer improperly admitted double hearsay, petitioner did not raise these issues at the hearing, thereby rendering them unpreserved for our review ( see Matter of Ortiz v. Fischer, 64 A.D.3d 1111, 1112, 882 N.Y.S.2d 669 [2009];Matter...