Booker v. Artus

51 A.D.3d 1235, 858 N.Y.S.2d 451

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 2008
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After petitioner’s urine specimen twice tested positive for cocaine, he was charged in a misbehavior report with using a controlled substance. A tier III disciplinary hearing was thereafter conducted, at the conclusion of which petitioner was found guilty. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and hearing testimony, together with the positive urinalysis test results and related documentation, provide substantial evidence to support the determination of guilt (see Matter of Moretti v Selsky, 46 AD3d 1049, 1050 [2007]). Petitioner’s claim that a false positive was created because of medication administered during his recent dental surgery was sufficiently refuted by a representative from the manufacturer of the testing equipment and, in any event, presented a credibility issue for resolution by the Hearing Officer (see Matter of Polite v Goord, 36 AD3d 971, 971 [2007]). Petitioner’s remaining contentions have been examined and, to the extent preserved, are without merit.

Cardona, PJ., Carpinello, Rose, Kavanagh and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.