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IN THE MATTER OF TOMAS MUNIZ, Appellant, v. DONALD SELSKY, as Director of the Inmate Disciplinary Program for the New York State Department of Correctional Ser

MEMORANDUM AND ORDER

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rule which prohibits the unauthorized use of a controlled substance. Contrary to petitioner's contention, the error of transcribing an incorrect test number from the correctional facility's administrative log book to the calibration slip does not, under the circumstances here, constitute reversible error (see, Matter of Russo v. Selsky, 249 A.D.2d 738, 739; Matter of Saldana v. Coombe, 241 A.D.2d 584). This inadvertent error was subsequently clarified by the testimony of the correction officer who performed the test and recorded the information. Notwithstanding this error, the record establishes that the results of petitioner's urine sample, accurately identified by his department identification number, twice tested positive for the presence of opiates.

We also reject petitioner's assertion that the malfunctioning of the tape recorder requires reversal, especially where, as here, the Hearing Officer recalled a witness and attempted to reconstruct the record (see generally, Matter of McDonald v. Coughlin, 217 A.D.2d 770, 771). Finally, a review of the record fails to support petitioner's assertion of Hearing Officer bias.

ORDERED that the judgment is affirmed, without costs.

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MATTER OF MUNIZ v. SELSKY
(Jul 20, 2000)