Rivera v. Coombe , 635 N.Y.S.2d 757 ( 1995 )

—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, an inmate at Woodbourne Correctional Facility in Sullivan County, was found guilty of violating a prison disciplinary rule prohibiting inmates from using controlled substances after his urine tested positive for opium. In support of his challenge to this administrative determination, he argues that he was arbitrarily selected for urinalysis testing and that the testing procedures were not properly followed. Inasmuch as petitioner failed to raise his first claim at the administrative hearing, we find that he has not preserved it for review. Nevertheless, were we to consider the merits, we would find that the selection of petitioner for urinalysis testing was not arbitrary in light of his suspicious behavior.

We further find, that, with the exception of his claim concerning discrepancies in the time when the tests were conducted and the results posted, petitioner has waived his right to challenge other aspects of the testing procedures by not raising them at the administrative hearing. Although petitioner correctly notes that the correction officer’s written report reflects a one-hour difference between the time of the testing and the posting of the results, we do not find that this discrepancy undermines the validity of the tests since it is explained by the fact that the testing equipment was not reset for daylight savings time. The results of the tests and the testimony of the correction officer who conducted them provide substantial evidence supporting the administrative determination.

Mikoll, J. P., Mercure, White, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.