Aviles v. Selsky

264 A.D.2d 883, 696 N.Y.S.2d 87, 1999 N.Y. App. Div. LEXIS 9122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 16, 1999
• Status: Published

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.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule that prohibits the unauthorized use of controlled substances after two EMIT urinalysis tests resulted in positive readings for the presence of cannabinoids. Challenging the determination, petitioner claims that the positive test results were caused by a prescription medication that he was taking at the time his urine was tested. However, the misbehavior report and positive test results, together with the testimony presented at the hearing, provide substantial evidence of petitioner’s guilt (see, Matter of Hernandez v McGinnis, 251 AD2d 769; Matter of Lopez v Goord, 242 AD2d 816). We find no error in the Hearing Officer’s reliance on the testimony of the correctional facility nurse which refuted evidence submitted by petitioner that the prescription drug he was taking caused a false positive (see, Matter of Lopez v Goord, supra, at 816-817). Petitioner’s remaining contentions, to the extent that they have been preserved for our review, have been considered and found to be unpersuasive.

Mikoll, J. P., Yesawich Jr., Peters, Spain and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.