Forbes v. Selsky

—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 a prison disciplinary rule. Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a prison disciplinary determination finding him guilty of using a controlled substance. Petitioner contends that the determination is not supported by substantial evidence because the misbehavior report indicates that the correction officer who tested his urine sample improperly recalibrated the urinalysis testing equipment. We disagree. The correction officer testified at the disciplinary hearing that, although he inadvertently wrote in the misbehavior report that he recalibrated the equipment using a “medium” calibrator, he actually used a “high” calibrator as required by the applicable directive. Moreover, petitioner failed to demonstrate prejudice resulting from this technical defect (see, Matter of Mays v Goord, 243 AD2d 882, 883). Therefore, we conclude that the misbehavior report, the correction officer’s testimony and the positive urinalysis test results provide substantial evidence supporting the determination of petitioner’s guilt (see, Matter of Kreel v Goord, 249 AD2d 600, 601). Cardona, P. J., Mercure, Crew III, Yesawich Jr. and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.