Albarella v. Selsky

Appellate Division of the Supreme Court of New York

Albarella v. Selsky

51 A.D.3d 1241, 856 N.Y.S.2d 492

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 2008

StatusPublished

This text of 51 A.D.3d 1241 (Albarella v. Selsky) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Albarella v. Selsky, 51 A.D.3d 1241, 856 N.Y.S.2d 492 (N.Y. Ct. App. 2008).

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Opinion

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 Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Having twice tested positive for opiates, petitioner was charged in a misbehavior report with using a controlled [1242]*1242substance. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged. Upon administrative appeal, that determination was affirmed with a modified penalty. Petitioner then commenced this CPLR article 78 proceeding seeking annulment. We now confirm.

The determination of guilt is supported by substantial evidence including the misbehavior report and testimony from the correction officer who authored it (see Matter of Rodriguez v Selsky, 47 AD3d 1173, 1173 [2008]). Petitioner’s remaining contentions, including his claim that drug testing rules and regulations were not followed, have been examined and found to be unavailing.

Mercure, J.P, Peters, Spain, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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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 Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Having twice tested positive for opiates, petitioner was charged in a misbehavior report with using a controlled [1242]*1242substance. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged. Upon administrative appeal, that determination was affirmed with a modified penalty. Petitioner then commenced this CPLR article 78 proceeding seeking annulment. We now confirm.

The determination of guilt is supported by substantial evidence including the misbehavior report and testimony from the correction officer who authored it (see Matter of Rodriguez v Selsky, 47 AD3d 1173, 1173 [2008]). Petitioner’s remaining contentions, including his claim that drug testing rules and regulations were not followed, have been examined and found to be unavailing.

Mercure, J.P, Peters, Spain, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

51 A.D.3d 1241, 856 N.Y.S.2d 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albarella-v-selsky-nyappdiv-2008.

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