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Rivera v. Prack

138 A.D.3d 1267 Court N.Y. App. Div. Decision date 2016-04-14 English

Judges Peters, P.J., Garry, Egan Jr. and Lynch, JJ., concur.

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p. 1267
In the Matter of Martin Rivera, Petitioner, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
[28 NYS3d 351]

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 Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with drug possession after a search of his cube revealed under his pillow an orange piece of paper with N8 imprinted on it, which was later identified as a soboxone sublingual film. Following a prison disciplinary proceeding, petitioner was found guilty as charged and that determination was later affirmed upon administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, related documentary evidence and testimony of both the correction officer who

p. 1268
discovered the item and the facility nurse who identified it as suboxone provide substantial evidence to support the determination of guilt (see Matter of Campbell v Prack, 118 AD3d 1202 , 1202 [2014]; Matter of Pedraza v Fischer, 65 AD3d 1434 , 1435 [2009]). To the extent that petitioner challenges the lack of drug testing, we find no error in the facility nurse visually identifying the contraband as the prescription drug suboxone after referring to a drug identification manual (see 7 NYCRR 1010.4 [d]; see also Matter of Campbell v Prack, 118 AD3d at 1203 ). Petitioner’s challenge to the chain of custody was not raised at the hearing or upon administrative appeal and, therefore, is not preserved for our review (see Matter of Coates v Fischer, 108 AD3d 997 , 998 [2013]; Matter of Torres v Selsky, 8 AD3d 775 , 775 [2004]). We have reviewed petitioner’s remaining contentions and find them to be unpersuasive.

Peters, P.J., Garry, Egan Jr. and Lynch, JJ., concur.

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

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