Rico v. Fischer — 112 A.D.3d 1249

Majority

p. 1249

In the Matter of Michael Rico, Petitioner, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.

[976 NYS2d 751]

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.

While refusing a correction officer’s request to provide a urine specimen, petitioner displayed his middle finger and used profanity. As a result, he was charged in a misbehavior report with refusing a direct order, failing to comply with urinalysis testing procedures and harassment. Petitioner was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report and testimony of the correction officer who authored it, supports the determination of guilt (see Matter of Sital v Fischer, 72 AD3d 1306 , 1307 [2010], lv dismissed 15 NY3d 823 [2010]; Matter of Spulka v Selsky, 36 AD3d 1183 , 1184 [2007]). Petitioner contends that the officer did not follow the proper protocol by escorting him to “the facility infirmary, clinic or

p. 1250

other appropriate area” for purposes of obtaining the urine specimen (7 NYCRR 1020.4 [d] [1]). This, however, does not relieve petitioner of his obligation to comply with the officer’s directive (see Matter of Billue v Goord, 28 AD3d 845 , 846 [2006]) and any problem he had with it should have been pursued through the grievance procedure (see Matter of Amaker v Bezio, 98 AD3d 1146 , 1147 n [2012]). Petitioner’s claims that he was improperly denied witnesses and documentary evidence and that the Hearing Officer was biased have not been preserved for our review due to his failure to raise them in his administrative appeal (see Matter of Ventimiglia v New York State Dept. of Correctional Servs., 94 AD3d 1327 , 1328 [2012]; Matter of Perez v Fischer, 62 AD3d 1104 , 1105 [2009]; Matter of Lee v Goord, 285 AD2d 716 , 716 [2001]).

Rose, J.P, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Cases cited

In re Stuart 15 NY3d 823 N.Y. 2010-09-14 p. 1249
Spulka v. Selsky 36 AD3d 1183 N.Y. App. Div. 2007-01-18 at 1184 p. 1249
Billue v. Goord 28 AD3d 845 N.Y. App. Div. 2006-04-06 at 846 p. 1250
Amaker v. Bezio 98 AD3d 1146 N.Y. App. Div. 2012-09-13 at 1147 p. 1250
Ventimiglia v. New York State Department of Correctional Services 94 AD3d 1327 N.Y. App. Div. 2012-04-19 at 1328 p. 1250
Perez v. Fischer 62 AD3d 1104 N.Y. App. Div. 2009-05-14 at 1105 p. 1250