Cole v. Goord , 850 N.Y.S.2d 283 ( 2008 )

Appeal from a judgment of the Supreme Court (McNamara, J.), entered January 12, 2007 in Albany 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 charged in a misbehavior report with refusing a direct order and failing to comply with urinalysis testing procedures. Following a tier III disciplinary hearing, petitioner was found guilty of a urinalysis testing violation, and the determination was affirmed upon administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination and Supreme Court dismissed the petition, prompting this appeal.

We affirm. Although petitioner was informed that he had three hours in which to provide a urine sample and that his refusal to do so would be considered a presumption of guilt, petitioner twice refused and threw his specimen cup in the toilet. As a refusal to submit a urine sample constitutes a violation of the disciplinary rules (see 7 NYCRR 1020.4 [c], [d] [4]; Matter of Brown v Goord, 18 AD3d 1084, 1085 [2005]), it was not improper for the correction officer to issue the misbehavior report prior to the expiration of the three-hour period. Contrary to petitioner’s contentions, the record reveals that he was properly informed of the reason for the urinalysis test and he was asked whether he was taking medications.

Petitioner’s argument that the determination is not supported by substantial evidence was not raised in his petition and, thus, it is not properly before this Court (see Matter of Johnson v Goord, 297 AD2d 881, 881 [2002]; Matter of Carrelero v Goord, 284 AD2d 679, 679 [2001]).

To the extent preserved, petitioner’s remaining contentions have been reviewed and found to be without merit.

Spain, J.P., Lahtinen, Kane, Malone and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, without costs.