Gibson v. Fischer

110 A.D.3d 1414, 973 N.Y.S.2d 867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 2013
• 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 respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with drug use after his urine twice tested positive for cocaine. He was found guilty as charged following a tier III disciplinary hearing, although the imposed penalty was modified upon administrative review. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. Substantial evidence supports the determination in the form of the misbehavior report, the test results and the testimony of the correction officer who authored the report and conducted the tests (see Matter of Mannino v Fischer, 102 AD3d 1032, 1032 [2013], lv denied 21 NY3d 855 [2013]; Matter of Xao He Lu v New York State Dept. of Corrections, 72 AD3d 1379, 1380 [2010]). The officer testified that it was possible for the second test to detect a higher amount of cocaine than the first, and petitioner’s claims to the contrary presented a credibility issue for the Hearing Officer to resolve (see Matter of Xao He Lu v New York State Dept. of Corrections, 72 AD3d at 1380). Petitioner’s remaining arguments, to the extent they are properly before us, have been considered and found to be lacking in merit.

Peters, P.J., Rose, Lahtinen and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.