Garcia v. Goord

273 A.D.2d 560, 710 N.Y.S.2d 133, 2000 N.Y. App. Div. LEXIS 6658

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

Petitioner, a prison inmate, was found guilty of drug use after two EMIT tests yielded positive results for the presence of opiates. Contrary to petitioner’s contention, the two positive test results provide substantial evidence supporting the determination of guilt (see, Matter of Lahey v Kelly, 71 NY2d 135; Matter of Morales v Coughlin, 188 AD2d 780). While petitioner also argues that the proper testing procedures were not followed, we reject that claim. Based upon our review of the record, the evidence sufficiently demonstrated that the drug testing was performed in accordance with applicable procedures and that the chain of custody was adequately established (see, Matter of Selby v Coombe, 249 AD2d 597). Although petitioner contends that heroin remains in the system well over a week, this raised a credibility issue properly resolved by the Hearing Officer (see, Matter of Juzwa v Goord, 264 AD2d 920).

In addition, we find no merit to petitioner’s claim that the Hearing Officer was biased. The fact that the Hearing Officer presided over two separate hearings involving petitioner does not, without more, indicate bias (see, Matter of Ford v Senkowski, 257 AD2d 833). Petitioner has failed to set forth any evidence establishing that the Hearing Officer was biased or that the outcome of the hearing flowed from the alleged bias (see, id.). Petitioner’s remaining contentions, including his claim that he was not allowed to question a correction officer, are either unpreserved for our review or lacking in merit.

Cardona, P. J., Mercure, Crew III, Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.