Jones v. Venettozzi

114 A.D.3d 980, 979 N.Y.S.2d 718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2014
• 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 which found petitioner guilty of violating a prison disciplinary rule.

After a sample of petitioner’s urine twice tested positive for the presence of THC, he was charged in a misbehavior report with using drugs. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

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We confirm. Initially, we reject petitioner’s claim that he was improperly denied certain documentary evidence at the hearing, specifically the operator’s manual and manufacturer’s guidelines for the urinalysis testing machine (see Matter of Anderson v Prack, 111 AD3d 1214, 1214 [2013]; Matter of Davis v Goord, 268 AD2d 932, 932-933 [2000], lv denied 95 NY2d 751 [2000]). Moreover, the record reveals that petitioner was provided with all of the urinalysis testing documentation mandated by the pertinent regulation (see 7 NYCRR 1020.4 [f] [1] [iv]).

Petitioner further asserts that he was improperly denied witnesses, specifically unidentified medical staff familiar with his urinary difficulties, whose testimony would have allegedly supported his defense that he was unable to provide a urine specimen for testing and that the positive test results were fabricated. However, the urinalysis test documentation and testimony of the two correction officers involved established that petitioner did, in fact, provide a urine specimen. Petitioner’s contrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Mannino v Fischer, 102 AD3d 1032, 1032-1033 [2013], lv denied 21 NY3d 855 [2013]). In view of the foregoing, we find no reason to disturb the determination of guilt.

Peters, EJ., Stein, McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Inasmuch as the verified petition does not raise a question of substantial evidence, the proceeding was improperly transferred to this Court. Nevertheless, we shall retain jurisdiction and decide the issues raised in the interest of judicial economy (see Matter of Poe v Fischer, 107 AD3d 1251, 1251 n [2013]).