Perez v. Coombe

226 A.D.2d 1131, 642 N.Y.S.2d 127, 1996 N.Y. App. Div. LEXIS 5694

Opinion

Determination unanimously confirmed without costs and petition dismissed. Memorandum: We confirm the determination of respondent that petitioner violated inmate rule 113.12 (7 NYCRR 270.2 [B] [14] [iii]), which prohibits the use of a controlled substance. The positive result of an EMIT test, when confirmed, as here, by the result of a second EMIT test, constitutes substantial evidence to support that determination (see, Matter of Lahey v Kelly, 71 NY2d 135, 138; Matter of McKins v Coughlin, 142 AD2d 987, lv denied 74 NY2d 603).

We reject the argument of petitioner that the Hearing Officer was required to conduct further investigation in response to his assertion that a particular medication had been omitted from the list of medications that he had taken in the prior 30 days (see, 7 NYCRR 1020.4 [d] [2]). The Hearing Officer was entitled to rely upon the list, which was prepared by the medical department and signed by a registered nurse. Petitioner’s assertion that a particular medication had been omitted from the list raised a credibility issue, which the Hearing Officer was entitled to resolve against petitioner (see, Matter of Perez v Wilmot, 67 NY2d 615, 617; People ex rel. Vega v Smith, 66 NY2d 130, 140). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present— Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.