Marino v. New York State Department of Correctional Services

Appellate Division of the Supreme Court of New York

Marino v. New York State Department of Correctional Services

41 A.D.3d 1004, 838 N.Y.S.2d 689

Appellate Division of the Supreme Court of the State of New York·Decided June 14, 2007·Published·Cited by 11 cases

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.

[1005] Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. 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.

The misbehavior report, together with the positive urinalysis test results, supporting documentation and testimony at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Costner v Goord, 31 AD3d 1030, 1030 [2006]; Matter of Molina v Selsky, 21 AD3d 1238, 1238-1239 [2005]). Petitioner’s claim that the misbehavior report was written in retaliation for his filing of a lawsuit against a correction official presented a credibility issue for the Hearing Officer to resolve (see Matter of Hoover v Goord, 38 AD3d 1069 [2007]; Matter of Dawkins v Selsky, 278 AD2d 649, 649 [2000]). Contrary to petitioner’s assertion, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Cayenne v Goord, 16 AD3d 782, 783-784 [2005]). Petitioner’s remaining contentions have been considered and are unpersuasive.

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

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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.

[1005] Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. 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.

The misbehavior report, together with the positive urinalysis test results, supporting documentation and testimony at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Costner v Goord, 31 AD3d 1030, 1030 [2006]; Matter of Molina v Selsky, 21 AD3d 1238, 1238-1239 [2005]). Petitioner’s claim that the misbehavior report was written in retaliation for his filing of a lawsuit against a correction official presented a credibility issue for the Hearing Officer to resolve (see Matter of Hoover v Goord, 38 AD3d 1069 [2007]; Matter of Dawkins v Selsky, 278 AD2d 649, 649 [2000]). Contrary to petitioner’s assertion, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Cayenne v Goord, 16 AD3d 782, 783-784 [2005]). Petitioner’s remaining contentions have been considered and are unpersuasive.

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

Marino v. New York State Department of Correctional Services, 41 A.D.3d 1004, 838 N.Y.S.2d 689 (N.Y. Ct. App. 2007).

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Opinion

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