Struble v. Goord

268 A.D.2d 845, 700 N.Y.S.2d 871, 2000 N.Y. App. Div. LEXIS 577

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 2000
• 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 was found, guilty of violating the prison disciplinary rule that prohibits inmates from using controlled substances after two EMIT tests performed on petitioner’s urine sample yielded positive results for the presence of cannabinoids and opiates. In our view, the misbehavior report combined with the testimony from the correction officer who tested the sample, constitute substantial evidence supporting the charge of drug use (see, Matter of Kussius v Walker, 247 AD2d 911, 912). Contrary to petitioner’s contention, a proper foundation was laid for the reliance on the positive test results and the Hearing Officer was within his province in crediting the testimony of the misbehavior report’s author (see, Matter of Gonzalez v Selsky, 253 AD2d 940). We have examined petitioner’s remaining challenges and, to the extent that they have been preserved for appellate review, find them to be without merit.

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