Gonzalez v. Selsky

301 A.D.2d 1019, 753 N.Y.S.2d 759, 2003 N.Y. App. Div. LEXIS 663

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 30, 2003
• 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 challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine twice tested positive for the presence of opiates. Contrary to petitioner’s contention, the misbehavior report, the two positive urinalysis tests results and the testimony at the hearing provide substantial evidence of petitioner’s guilt (see Matter of Goodwine v Selsky, 299 AD2d 728; Matter of Woods v Selsky, 291 AD2d 773). The conflicting testimony at the hearing from petitioner and a representative of SYVA as to whether the amount of poppy seed crackers petitioner had eaten was likely to account for a false positive test result created a credibility issue for the Hearing Officer to resolve (see Matter of Wood v Selsky, 240 AD2d 876). Petitioner’s remaining contentions, including that the penalty imposed was harsh or excessive, have been reviewed and found to be without merit.

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