Young v. Selsky

32 A.D.3d 598, 818 N.Y.S.2d 872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 3, 2006
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of eannabinoids. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner’s claim, the proceeding was properly transferred to this Court as the petition raised an issue of substantial evidence (see CPLR 7804 [g]; Matter of Hamilton v Selsky, 13 AD3d 844, 845 [2004], lv denied 5 NY3d 704 [2005]). Upon reviewing the record, we find that the misbehavior report, the testimony of the correction officer who prepared it and the positive urinalysis test results and related documentation provide substantial evidence supporting the determination of guilt (see Matter of Burgos-Morales v Goord, 22 AD3d 999, 1000 [2005]; Matter of Wigfall v Goord, 20 AD3d 799, 800 [2005]). Petitioner’s defense that he did not provide a urine sample on the date in question and that the sample tested belonged to another inmate with the same last name presented a credibility issue for the Hearing Officer to resolve (see Matter of Jude v Goord, 277 AD2d 535, 535 [2000]). Moreover, petitioner was not improperly denied documentary evidence establishing that he was randomly selected for the drug test inasmuch as the requested document was not available (see Matter of Burse v Goord, 274 AD2d 678, 679 [2000]), and he was provided with another document containing the same information (see Matter of Benton v Coombe, 242 AD2d 763, 764 [1997]). His remaining contentions are either unpreserved for our review or are lacking in merit.

Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.