Jackson v. Goord

305 A.D.2d 839, 758 N.Y.S.2d 558, 2003 N.Y. App. Div. LEXIS 5505

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 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 (1) a determination of respondent which found petitioner guilty of violating a prison disciplinary rule, and (2) a determination of the Central Office Review Committee which denied petitioner’s grievance.

Petitioner commenced this CPLR article 78 proceeding challenging two administrative determinations. The first found petitioner guilty of violating the prison disciplinary rule prohibiting failure to comply with urinalysis procedures. Substantial evidence supporting the charged misconduct was presented at petitioner’s disciplinary hearing in the form of the misbehavior report and the testimony of, among others, the reporting correction officer who related that petitioner had refused to comply with his repeated orders to submit a urine sample for testing. Inasmuch as substantial evidence supports the determination, it will not be disturbed (see Matter of Cruz v Goord, 302 AD2d 816 [2003]; Matter of Infante v Johnson, 258 AD2d 799 [1999]). The fact that petitioner may have been mistakenly informed that his urine was to be tested based upon “suspicion” does not excuse his failure to submit a urine sample upon demand (see Matter of Rivera v Smith, 63 NY2d [1984]; Matter of Thompson v Selsky, 289 AD2d 809 [2001]). Petitioner’s remaining contentions regarding this determination have been examined and found to be without merit.

The remaining portion of the instant application concerns a grievance filed by petitioner seeking the return of certain confiscated mail. After confiscation of this material was approved by the Superintendent of the facility where petitioner was incarcerated, he appealed to the Inmate Grievance Program Central Office Review Committee. The Committee affirmed the decision, while advising petitioner that it had not been able to review the documents in question because they had been misplaced. The Attorney General now informs this Court that the documents have been located. Accordingly, we grant respondent’s request to remit so much of this matter as concerns petitioner’s grievance to the Central Office Review Committee for its determination of whether the documents were properly confiscated.

Cardona, P.J., Mercure, Crew III, Carpinello and Kane, JJ., concur. Adjudged that the determination finding petitioner guilty of violating the prison disciplinary rule prohibiting the failure to comply with urinalysis procedures is confirmed, without costs, and so much of the petition as sought review thereof is dismissed. Adjudged that the determination denying petitioner’s grievance is annulled, without costs, and matter remitted to the Central Office Review Committee for further proceedings not inconsistent with this Court’s decision.