                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 26, 2017                   522510
________________________________

In the Matter of JEAN FRANTZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


     Jean Frantz, Elmira, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang 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 the Commissioner of Corrections and
Community Supervision 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 THC. Following a tier III disciplinary hearing, he
was found guilty and this determination was affirmed upon
administrative appeal. This CPLR article 78 proceeding ensued.

      We confirm. The misbehavior report, positive drug test
results, related documentation and hearing testimony provide
                              -2-                522510

substantial evidence to support the determination finding
petitioner guilty of using a controlled substance (see Matter of
Belle v Prack, 140 AD3d 1509, 1510 [2016]; Matter of Martinez v
Annucci, 134 AD3d 1380, 1380-1381 [2015]). Petitioner's
challenge to the foundation of the positive test results – due to
the fact that the sample identification numbers entered on the
two test result forms differed by one number – is unpreserved for
our review in light of petitioner's failure to raise this issue
at the hearing (see Matter of Monje v Geoghegan, 108 AD3d 957,
957-958 [2013]; Matter of Ortiz v Fischer, 64 AD3d 1111, 1112
[2009]).

      We reject petitioner's contention that he was denied the
right to call a particular witness. Petitioner requested that
the Hearing Officer call a pharmacist to testify in support of
his claim that his prescription for ibuprofen could have produced
a false positive test result. The record reflects that both a
facility nurse and a facility trainer for the drug testing system
had already testified at the hearing that petitioner's
prescription would not have caused a false positive test result.
Petitioner was also provided a page from the testing equipment's
cross-reactivity manual, which provides a list of potential
prescription drugs that could cause a false positive test result,
indicating that petitioner's prescription could not produce a
false positive result. Accordingly, the Hearing Officer did not
err in denying petitioner's request to call the pharmacist as a
witness (see Matter of Williams v Annucci, 134 AD3d 1378, 1379
[2015], lv denied 27 NY3d 904 [2016]; Matter of Webb v Leclaire,
52 AD3d 1131, 1132 [2008]). Finally, upon reviewing the record,
we find no indication that the Hearing Officer was biased or that
the determination flowed from any alleged bias (see Matter of
Medina v Annucci, 141 AD3d 1052, 1053 [2016]; Matter of Sawyer v
Annucci, 140 AD3d 1499, 1500 [2016]).

      Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.,
concur.
                              -3-                  522510

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
