IN RE: William LOPEZ (2008)

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was found face down and unresponsive in the prison yard.   As a result, he was taken to the facility hospital for examination.   It was determined that he was in dire condition and an ambulance was summoned.   Once the ambulance arrived, medication was administered and petitioner was transported to an outside hospital for treatment.   While there, a drug screen was conducted which proved positive for opiates.   Consequently, petitioner was charged in a misbehavior report with illicit drug use. Following a tier III disciplinary hearing, he was found guilty as charged.   That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, together with the related documentation and testimony adduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Callender v. Goord, 24 A.D.3d 1145, 1145, 809 N.Y.S.2d 218 [2005] ).   To the extent that petitioner asserted that he had been assaulted and drugged against his will, a credibility issue was created for resolution by the Hearing Officer (see Matter of Pagan v. Selsky, 45 A.D.3d 1120, 1121, 844 N.Y.S.2d 903 [2007] ).   Petitioner's claim that the drug testing forms were not produced at the hearing and/or given to him is unpreserved for our review given that he failed to lodge an objection at the hearing (see Matter of Filpo v. Goord, 37 A.D.3d 891, 892, 828 N.Y.S.2d 732 [2007] ).

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