Tavolino v. Herbert

Appellate Division of the Supreme Court of New York

Tavolino v. Herbert

206 A.D.2d 949, 615 N.Y.S.2d 189, 1994 N.Y. App. Div. LEXIS 7912

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

DecidedJuly 15, 1994

StatusPublished

This text of 206 A.D.2d 949 (Tavolino v. Herbert) 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.

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Tavolino v. Herbert, 206 A.D.2d 949, 615 N.Y.S.2d 189, 1994 N.Y. App. Div. LEXIS 7912 (N.Y. Ct. App. 1994).

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Opinion

Determination unanimously confirmed and petition dismissed. Memorandum: The misbehavior report, which alleged that two successive urine tests performed by different officers on a sample of petitioner’s urine were positive for the presence of Benzodiazepine, a controlled substance, constituted substantial evidence to support the Hearing Officer’s determination that petitioner violated the inmate rule prohibiting the use of a controlled substance (see, Matter of Lahey v Kelly, 71 NY2d 135, 138). [950]*950The Hearing Officer was entitled to rely upon hearsay evidence to determine that the prescription medication petitioner was taking would not produce a positive result (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). We have examined the remaining arguments raised by petitioner and find them to be without merit. (Article 78 Proceeding Transferred by Order of Supreme Court, Erie County, Howe, J.) Present—Pine, J. P., Lawton, Wesley, Doerr and Boehm, JJ.

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Determination unanimously confirmed and petition dismissed. Memorandum: The misbehavior report, which alleged that two successive urine tests performed by different officers on a sample of petitioner’s urine were positive for the presence of Benzodiazepine, a controlled substance, constituted substantial evidence to support the Hearing Officer’s determination that petitioner violated the inmate rule prohibiting the use of a controlled substance (see, Matter of Lahey v Kelly, 71 NY2d 135, 138). [950]*950The Hearing Officer was entitled to rely upon hearsay evidence to determine that the prescription medication petitioner was taking would not produce a positive result (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). We have examined the remaining arguments raised by petitioner and find them to be without merit. (Article 78 Proceeding Transferred by Order of Supreme Court, Erie County, Howe, J.) Present—Pine, J. P., Lawton, Wesley, Doerr and Boehm, JJ.

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Bluebook (online)

206 A.D.2d 949, 615 N.Y.S.2d 189, 1994 N.Y. App. Div. LEXIS 7912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tavolino-v-herbert-nyappdiv-1994.

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