IN RE: Ruben PEREZ

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

IN RE: Ruben PEREZ, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: January 30, 2003

Before:  CARDONA, P.J., CREW III, CARPINELLO, ROSE and LAHTINEN, JJ. Ruben Perez, Auburn, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 a prison disciplinary rule.

 Substantial evidence supports the determination finding petitioner guilty of violating the prison disciplinary rule that prohibits the possession of drugs.   The misbehavior report and hearing testimony established that a hand-rolled cigarette containing a leafy green substance, later determined to be marihuana, was confiscated from petitioner during a random frisk of inmates.   Even if petitioner's challenge to the chain of custody of the contraband was preserved (see Matter of Wilson v. Coombe, 237 A.D.2d 831, 655 N.Y.S.2d 192), we would nevertheless find it to be without merit.   Although the correction officer who confiscated the contraband did not personally make a notation on the chain of custody form, “it is enough that another, a secretary or some other staff member, make the notations on the handler's behalf” (Matter of Hop Wah v. Coughlin, 153 A.D.2d 999, 1000, 545 N.Y.S.2d 619, lv. denied 75 N.Y.2d 705, 552 N.Y.S.2d 928, 552 N.E.2d 176).   Furthermore, the record contains the appropriate documentation, which petitioner indicated he received, for the use of the contraband test results (see 7 NYCRR 101.5).   Finally, petitioner's contention of hearing officer bias is without merit.

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

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