Rodriguez v. Coombe

Appellate Division of the Supreme Court of New York

Rodriguez v. Coombe

249 A.D.2d 655, 671 N.Y.S.2d 195, 1998 N.Y. App. Div. LEXIS 3857

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 9, 1998

StatusPublished

Cited by12 cases

This text of 249 A.D.2d 655 (Rodriguez v. Coombe) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rodriguez v. Coombe, 249 A.D.2d 655, 671 N.Y.S.2d 195, 1998 N.Y. App. Div. LEXIS 3857 (N.Y. Ct. App. 1998).

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Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Following a hearing, petitioner, a prison inmate, was found guilty of using a controlled substance in violation of prison disciplinary rules. The misbehavior report, the results of two urinalysis tests and the testimony of the certified ETS operator who performed these tests established that petitioner’s urine tested positive for the presence of opiates, thereby providing substantial evidence to support the finding of guilt (see, Matter of Lopez v Goord, 242 AD2d 816). Petitioner’s defense to the charge, i.e., that he had taken the medication Zantac which caused a false-positive result, was refuted by the certified ETS operator who testified that he had ascertained from the manufacturer of the drug-testing equipment that Zantac would not cause a false-positive reading for opiates (see generally, Matter of Murphy v Selsky, 239 AD2d 724; Matter of Nina v Coombe, 233 AD2d 658). This conflict in testimony presented a credibility issue which the Hearing Officer was free to resolve against petitioner (see, Matter of Wood v Selsky, 240 AD2d 876, 877). We also reject petitioner’s claim that he was denied his conditional right to call witnesses (see, 7 NYCRR 254.5 [a]), as the record adequately establishes that the testimony of the witness he requested would have been redundant to that supplied by other witnesses (see, Matter of Greene v Coombe, 238 AD2d 813, lv denied 91 NY2d 801). Petitioner’s remaining contentions have been examined and found to be either unpreserved for our review or lacking in merit.

Mercure, J. P., Crew III, White, Peters and Spain, 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 Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Following a hearing, petitioner, a prison inmate, was found guilty of using a controlled substance in violation of prison disciplinary rules. The misbehavior report, the results of two urinalysis tests and the testimony of the certified ETS operator who performed these tests established that petitioner’s urine tested positive for the presence of opiates, thereby providing substantial evidence to support the finding of guilt (see, Matter of Lopez v Goord, 242 AD2d 816). Petitioner’s defense to the charge, i.e., that he had taken the medication Zantac which caused a false-positive result, was refuted by the certified ETS operator who testified that he had ascertained from the manufacturer of the drug-testing equipment that Zantac would not cause a false-positive reading for opiates (see generally, Matter of Murphy v Selsky, 239 AD2d 724; Matter of Nina v Coombe, 233 AD2d 658). This conflict in testimony presented a credibility issue which the Hearing Officer was free to resolve against petitioner (see, Matter of Wood v Selsky, 240 AD2d 876, 877). We also reject petitioner’s claim that he was denied his conditional right to call witnesses (see, 7 NYCRR 254.5 [a]), as the record adequately establishes that the testimony of the witness he requested would have been redundant to that supplied by other witnesses (see, Matter of Greene v Coombe, 238 AD2d 813, lv denied 91 NY2d 801). Petitioner’s remaining contentions have been examined and found to be either unpreserved for our review or lacking in merit.

Mercure, J. P., Crew III, White, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

249 A.D.2d 655, 671 N.Y.S.2d 195, 1998 N.Y. App. Div. LEXIS 3857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-coombe-nyappdiv-1998.

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