Mercedes v. Senkowski

Mahoney, P. J. Appeal from a judgment of the Supreme Court (Plumadore, J.), entered April 21, 1989 in Clinton County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule. Petitioner was confined at Clinton Correctional Facility in Clinton County and charged with the use of a controlled substance in violation of State-wide rule 113.12 (see, 7 NYCRR former 270.1 [b] [14] [iv]). He was found guilty following a [706] disciplinary hearing and was unsuccessful on administrative appeal. He commenced this CPLR article 78 proceeding to challenge the determination. Supreme Court dismissed the petition and this appeal followed. Petitioner claims that the determination should be annulled because EMIT control test result cards were not produced in violation of 7 NYCRR 1020.4 (e) (1) (iv) and 1020.5 (a) (1). Petitioner’s failure to raise this issue at the administrative level precludes its consideration now (see, e.g., Matter of Hop Wah v Coughlin, 153 AD2d 999, lv denied 75 NY2d 705). In any event, we recently have resolved petitioner’s contentions contrary to his position (see, Matter of Sweet v Coughlin, 161 AD2d 1005). Judgment affirmed, without costs. Mahoney, P. J., Mikoll, Yesawich, Jr., Levine and Mercure, JJ., concur.