Torres v. Fischer

• Decision Date: 23 May 2013
• Citation: 2013 N.Y. Slip Op. 03717,106 A.D.3d 1342,965 N.Y.S.2d 390
• Parties: In the Matter of Jose TORRES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1342

965 N.Y.S.2d 390

2013 N.Y. Slip Op. 03717

In the Matter of Jose TORRES, Petitioner,

v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

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

May 23, 2013.

Jose Torres, Alton, petitioner pro se.

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

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with possession of drugs, smuggling and violating visiting procedures. The charges arose out of an incident where a correction officer observed another inmate hand petitioner a small, dark object in the visit room area. The correction officer ordered that petitioner and the other inmate be frisked and, minutes later, a dark balloon was found on the floor where petitioner had been standing when the exchange had been observed. The balloon contained 16 pills later identified by the facility medical staff as Suboxone, a prescription drug. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. Upon administrative review, the finding of guilt was upheld, with a reduction in the assessed penalty. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, the testimony of the authoring officer and the officer who discovered the balloon, as well as confidential testimony, provide substantial evidence to support the determination of guilt ( see Matter of Sullivan v. Fischer, 95 A.D.3d 1514, 1515, 944 N.Y.S.2d 677 [2012];Matter of Boyle v. Fischer, 89 A.D.3d 1268, 1268, 932 N.Y.S.2d 389 [2011] ). Petitioner's contention that no drug testing forms were entered into evidence pursuant to 7 NYCRR 1010.5 is unpreserved for our review in light of his failure to raise an objection on that ground at the hearing ( see Matter of Lopez v. Goord, 49 A.D.3d 1044, 1045, 853 N.Y.S.2d 706 [2008],lv. denied11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008];Matter of Filpo v. Goord, 37 A.D.3d 891, 892, 828 N.Y.S.2d 732 [2007] ).

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

PETERS, P.J., LAHTINEN, McCARTHY and EGAN JR., JJ., concur.