IN RE: Javon BOATWRIGHT

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Javon BOATWRIGHT, Appellant, v. Michael McGINNIS, as Superintendent of Southport Correctional Facility, et al., Respondents.

Decided: December 29, 2005

Before:  CARDONA, P.J., MERCURE, PETERS, LAHTINEN and KANE, JJ. Javon Boatwright, Pine City, appellant pro se. Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondents.

Appeal from a judgment of the Supreme Court (O'Brien III, J.), entered February 25, 2005 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids.   He was found guilty of the charge following a tier III disciplinary hearing.   After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding raising various procedural issues.   Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

 Initially, by failing to object at the hearing to the adequacy of the foundation for the urinalysis test results or the sufficiency of the misbehavior report, petitioner has failed to preserve these claims for our review (see Matter of Odome v. Goord, 8 A.D.3d 921, 922, 779 N.Y.S.2d 603 [2004];  see also Matter of Beckles v. Selsky, 273 A.D.2d 584, 585, 710 N.Y.S.2d 552 [2000], lv. denied 95 N.Y.2d 764, 716 N.Y.S.2d 38, 739 N.E.2d 294 [2000] ).   Furthermore, his claim that the Hearing Officer did not conduct the hearing in a fair and impartial manner is not substantiated by the record as there is nothing to indicate that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Davis v. Girdich, 20 A.D.3d 788, 789, 798 N.Y.S.2d 586 [2005], lv. denied 5 N.Y.3d 715, 807 N.Y.S.2d 16, 840 N.E.2d 1030 [2005];  Matter of Porter v. McGinnis, 20 A.D.3d 641, 641, 798 N.Y.S.2d 540 [2005] ).   We have considered petitioner's remaining contentions and find no basis for disturbing the judgment dismissing the proceeding.

ORDERED that the judgment is affirmed, without costs.

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