Mateos v. Fischer

110 A.D.3d 1127, 971 N.Y.S.2d 907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 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 which found petitioner guilty of violating a prison disciplinary rule.

After petitioner’s urine twice tested positive for opiates, he was charged in a misbehavior report with using a controlled substance. Petitioner was found guilty following a tier III disciplinary hearing, although the penalty imposed was modified upon administrative review. The present CPLR article 78 proceeding ensued.

We confirm. The hearing testimony, misbehavior report and positive drug test results provide substantial evidence supporting the determination of guilt (see Matter of Johnson v Fischer, 104 AD3d 1007, 1007 [2013]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]). Contrary to petitioner’s assertion, the hearing testimony demonstrated that proper testing procedures were followed and that the correction officer who conducted the tests was certified to do so (see Matter of Bornstorff v Bezio, 73 AD3d 1397, 1397-1398 [2010]). Petitioner’s remaining contentions, to the extent they are properly presented for our review, have been considered and found to lack merit.

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