IN RE: Carlos CESPEDES (2009)

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner's cell, a correction officer recovered two altered soup cans in a milk crate under petitioner's bed. The first can contained 25 pills, identified by a pharmacist as the prescription medications morphine, percocet and neurontin, as well as a large quantity of U.S. currency. The second can contained 43 .5 grams of a green leafy substance that tested positive for marihuana. As a result, petitioner was charged in a misbehavior report with possession of drugs, possession of unauthorized property and possession of unauthorized medications. He was found guilty of all of the charges following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

Petitioner asserts, among other things, that that part of the determination finding him guilty of drug possession cannot be sustained because he was not provided with a copy of the statement of scientific principles and validity of testing materials and procedures used. Based upon our review of the record, we agree. The pertinent regulation requires that such document be served upon the inmate where the positive result of a test of suspected contraband drugs is used as evidence at a disciplinary hearing (see 7 NYCRR 1010.5[d]; see also Matter of Giannattasio v. Coombe, 237 A.D.2d 287, 288 [1997] ). Inasmuch as respondent concedes that such documentation was not provided and no testimony was adduced concerning the testing procedures employed, substantial evidence does not support that part of the determination finding petitioner guilty of drug possession (see Matter of Ruzas v. Goord, 268 A.D.2d 742, 744 [2000]; Matter of Davis v. McClellan, 202 A.D.2d 770, 771 [1994] ). Accordingly, that part of the determination must be annulled and, to the extent that a loss of good time was imposed, the matter must be remitted for a redetermination of the penalty relative to the remaining charges (see Matter of Tevault v. Fischer, 61 A.D.3d 1161, 1163 [2009]; Matter of Torres v. Fischer, 53 A.D.3d 1008, 1009 [2008] ).

As for the remaining charges, the misbehavior report and documentary evidence provide substantial evidence supporting the determination of guilt (see Matter of Kimble v. Fischer, 56 A.D.3d 879, 879 [2008]; Matter of Gonzalez v. Fischer, 53 A.D.3d 945, 945-946 [2008] ). Furthermore, although petitioner complains that he was not provided with adequate employee assistance, he has not preserved this claim due to his failure to raise it either at the hearing (see Matter of Carter v. Goord, 45 A.D.3d 1077, 1078 [2007] ) or in his administrative appeal (see Matter of Harris v. Selsky, 9 A.D.3d 695, 696 [2004] ).

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of drug possession and imposed a penalty; petition granted to that extent, the Commissioner of Correctional Services is directed to expunge all references thereto from petitioner's institutional record and matter remitted to the Commissioner of Correctional Services for an administrative redetermination of the penalty imposed on the remaining violations; and, as so modified, confirmed.