Russo v. Selsky

249 A.D.2d 738, 671 N.Y.S.2d 787, 1998 N.Y. App. Div. LEXIS 4121

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 1998
• Status: Published

Opinion

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

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging an administrative determination finding him guilty of using a controlled substance. Based upon our review of the record, we find that the two positive test results indicating the presence of opiates, together with the misbehavior report and the testimony of the correction officer who performed the tests, provide substantial evidence supporting the determination of guilt (see, Matter of Lahey v Kelly, 71 NY2d 135, 143). The fact that an inadvertent clerical error was made by a correction officer in transcribing a test number onto the inventory form provided to petitioner does not, under the particular circumstances here, mandate a contrary conclusion (see, Matter of Martinez v Ross, 243 AD2d 914, appeal dismissed 91 NY2d 887; Matter of Maldonado v Selsky, 162 AD2d 843, 844). There is no dispute that the test numbers contained in the urinalysis test request form, the urinalysis procedure form and EMIT calibration slips coincided. We have considered petitioner’s remaining contentions and find them to be unpersuasive.

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