Wolfgang v. Goord

43 A.D.3d 1262, 842 N.Y.S.2d 116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2007
• Status: Published

Opinion

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

Petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting the use of drugs after a sample of his urine twice tested positive for opiates. Following a tier III disciplinary hearing, he was found guilty of that charge. Petitioner exhausted his administrative remedies and then commenced this CPLR article 78 proceeding challenging the determination.

The misbehavior report, positive urinalysis test results and hearing testimony provide substantial evidence of petitioner’s guilt (see Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], Iv denied 8 NY3d 816 [2007]). Petitioner’s defense that his ingestion of poppy seed crackers resulted in a false positive test result created a credibility issue for resolution by the Hearing Officer (see Matter of Shabazz v Selsky, 12 AD3d 795, 796 [2004]).

To the extent preserved, the remaining claims advanced by petitioner have been examined and found to be unavailing.

Cardona, EJ., Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.