IN RE: Robert LOPEZ (2005)

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 certain prison disciplinary rules.

Petitioner, an inmate, was ordered by a correction officer to provide a urine sample as part of a random screening.   During the testing procedure, the correction officer observed petitioner dip the specimen cup into the sink and hand him the cup containing what appeared to be water.   After testing the temperature of the liquid in the cup and determining that it was too cold to be urine, the correction officer discarded it.   When petitioner was unable to provide a urine specimen within the remaining three-hour period, he was charged in a misbehavior report with refusing a direct order and failing to comply with urinalysis testing procedures.   He was found guilty of these charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the testimony of the correction officer who prepared it and administered the urinalysis test, provide substantial evidence supporting the determination of guilt (see Matter of Green v. Ricks, 304 A.D.2d 1010, 1011, 760 N.Y.S.2d 238 [2003], lv. denied 100 N.Y.2d 509, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003], cert. denied 540 U.S. 1166, 124 S.Ct. 1181, 157 L.Ed.2d 1213 [2004];  Matter of Borcsok v. Selsky, 296 A.D.2d 678, 678, 744 N.Y.S.2d 772 [2002], lv. denied 98 N.Y.2d 616, 752 N.Y.S.2d 2, 781 N.E.2d 914 [2002] ).   Petitioner's claims that proper urinalysis testing procedures were not followed and that the charges were redundant have not been preserved for our review inasmuch as he failed to raise them at the disciplinary hearing (see Matter of Torres v. Selsky, 8 A.D.3d 775, 776, 777 N.Y.S.2d 815 [2004];  Matter of Blackwell v. Goord, 5 A.D.3d 883, 885, 772 N.Y.S.2d 761 [2004], lv. denied 2 N.Y.3d 708, 781 N.Y.S.2d 289, 814 N.E.2d 461 [2004] ).   Petitioner's remaining claims lack merit.

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