Opinion
April 28, 1998
Petitioner's argument that evidence adduced against him was unconstitutionally obtained was never advanced by him at his administrative hearing and we decline to consider it for the first time on article 78 review ( see, Matter of Sowa v. Looney, 23 N.Y.2d 329, 333; Matter of Jemrock Realty Co. v. New York State Div. of Hous. Community Renewal, 245 A.D.2d 92). Had the argument been appropriately preserved, however, we would find it to be without merit. Nor is there merit to petitioner's argument that the reviewed determination should be annulled because of the Hearing Commissioner's decision not to exclude certain evidence as to which an unbroken chain of custody had not been established. The Hearing Commissioner's decision upon this evidentiary matter did not deprive petitioner of a fair hearing ( see, Matter of Cacchillo v. Perales, 172 A.D.2d 98, 101-102). Finally, our review of the hearing record indicates that the challenged determination is supported by substantial evidence ( see, Matter of Miller v. DeBuono, 90 N.Y.2d 783, 793).
Concur — Milonas, J.P., Ellerin, Wallach, Williams and Mazzarelli, JJ.