Rosario v. Goord ( 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,^* 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 AD3d 985, 986 [2005]; Matter of Burr v Goord, 284 AD2d 881, 882 [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 AD2d 714, 715 [2002]).

Cardona, P.J., Crew III, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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