IN RE: Jesus ROSARIO (2006)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

While petitioner was confined in a dry cell,¹ a nurse came into check his vital signs and put an oral thermometer into his mouth.   While removing the thermometer, the nurse observed a lime green circular item about the size of a dime underneath petitioner's tongue.   When the nurse questioned him about the object, he swallowed it and denied having anything in his mouth.   He was charged in a misbehavior report with possessing contraband, smuggling, making a false statement and refusing to comply with search and frisk procedures.   Following a tier III disciplinary hearing, petitioner was found guilty of possessing contraband and making a false statement, and the determination was upheld on administrative appeal.   This CPLR article 78 proceeding followed.

 We confirm.   The misbehavior report, which contained a detailed account of petitioner's concealment of a foreign object in his mouth and false representations to the nurse, provides substantial evidence supporting the determination of guilt (see Matter of Applewhite v. Goord, 22 A.D.3d 985, 986, 802 N.Y.S.2d 389 [2005];  Matter of Burr v. Goord, 284 A.D.2d 881, 882, 727 N.Y.S.2d 345 [2001] ).   His claim that the hearing was not conducted in a timely manner was not raised at the disciplinary hearing and is, therefore, not preserved for our review (see e.g. Matter of McKethan v. Selsky, 300 A.D.2d 714, 715, 750 N.Y.S.2d 533 [2002] ).

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

FOOTNOTES

1.   A dry cell is one used to isolate an inmate suspected of either ingesting contraband or hiding it on his person.