IN THE MATTER OF DAWKINS v. SELSKY

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of possessing a controlled substance after a routine search of his cell disclosed an altered pen containing a substance which tested positive for amphetamines. The misbehavior report and the positive narcotic test kit results constitute substantial evidence of petitioner's guilt (see, Matter of Rosario v. Selsky, 266 A.D.2d 656, 657; Matter of Moley v. Selsky, 245 A.D.2d 588, 589). Although petitioner claims that the test results were incorrect and that the misbehavior report was fabricated in retaliation for grievances that he previously filed, the Hearing Officer was entitled to resolve these credibility issues against petitioner (see, Matter of Juzwa v. Goord, 264 A.D.2d 920, 921; Matter of Moore v. Rabideau, 250 A.D.2d 1008, 1009;Matter of Darnell v. Kuhlmann, 145 A.D.2d 852, 854). Petitioner's procedural challenges were not raised at the disciplinary hearing and, therefore, are not preserved for appellate review (see, Matter of Daum v. Goord, 270 A.D.2d 745, 746; Matter of Benton v. Couture, 269 A.D.2d 642). In any event, were we to review the arguments, we would find that they do not warrant annulment of the determination.

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