Matter of Joseph v. Prack

Opinion

State of New York

Supreme Court, Appellate Division Third Judicial Department Decided and Entered: November 12, 2015 520607

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In the Matter of SHIRWYN JOSEPH, Petitioner,

v MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

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Calendar Date: September 22, 2015

Before: Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ.

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Shirwyn Joseph, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondent.

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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 Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with drug use after his urine twice tested positive for the presence of buprenorphine. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

-2- 520607

We confirm. The misbehavior report, positive urinalysis test results, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Paddyfote v Fischer, 118 AD3d 1240, 1241 [2014]; Matter of Cane v Fischer, 115 AD3d 1097, 1098 [2014]). Petitioner's claim that prescribed medication caused the positive test results was contradicted by testimony from the correction officer who testified that the medication was not denoted on the manufacturer's reactivity list of medications that would cause a false positive, thus creating a credibility issue for the Hearing Officer to resolve (see Matter of Curry v Fischer, 93 AD3d 984, 984 [2012]; Matter of Conway v Commissioner of Dept. of Correctional Servs., 278 AD2d 636, 637 [2000]). Petitioner's procedural challenges were not raised at the hearing and, therefore, are not preserved for our review.

Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court