McMillan v. Goord

289 A.D.2d 757, 733 N.Y.S.2d 922, 2001 N.Y. App. Div. LEXIS 12023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2001
• 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 two determinations of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was the subject of two misbehavior reports, each of which charged him with violating the prison disciplinary rule prohibiting the unauthorized use of controlled substances or narcotics. Substantial evidence of petitioner’s guilt of the charged misconduct was presented at two separate disciplinary hearings in the form of the misbehavior reports and the documentation of the positive urinalysis test results. Also there was testimony at the first hearing by the correction officer who had obtained the sample, conducted the tests and authored the misbehavior reports, and at the second hearing by one of the facility’s correction officers assigned to conduct urinalysis testing (see, Matter of Kae v Selsky, 279 AD2d 682; Matter of Myers v Goord, 274 AD2d 801, 802). Petitioner’s unsupported assertions that the test results were invalid is belied by evidence in the record which establishes that the requisite procedures were followed in all respects (see, 7 NYCRR 1020.4 [e]; see also, Matter of Terry v Goord, 272 AD2d 701). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Cardona, P. J., Mercure, Spain, Rose and Lahtinen, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.