Opinion
No. 500104.
February 8, 2007.
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.
Clyde Thompson, Moravia, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondents.
Before: Crew III, J.P., Peters, Carpinello, Mugglin and Rose, JJ.
After petitioner's urine sample twice tested positive for the presence of cannabinoids, he was charged in a misbehavior report with the unauthorized use of a controlled substance. Petitioner was found guilty following a tier III disciplinary hearing, and the determination was upheld administratively. This CPLR article 78 proceeding ensued.
The misbehavior report, the positive results of two EMIT tests with supporting documents and the testimony of two correction officers, one of whom took the urine sample and the other of whom tested the sample, constitute substantial evidence in support of the disciplinary determination ( see Matter of Lahey v Kelly, 71 NY2d 135, 138; Matter of White v Selsky, 32 AD3d 1101, 1101; Matter of Davis v Goord, 8 AD3d 854, 855). Petitioner's contention that his urine sample was unlabeled and might have been confused with that of another inmate created a credibility issue for the Hearing Officer to resolve ( see Matter of Harris v Fletcher, 30 AD3d 948; Matter of Jamison v Goord, 8 AD3d 860; Matter of Miller v New York State Dept. of Correctional Servs., 295 AD2d 714, 714-715). Also, our review of the record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer ( see Matter of Shicon v Goord, 27 AD3d 811, 812; Matter of Cayenne v Goord, 16 AD3d 782, 783-784; Matter of Sanchez v Selsky, 8 AD3d 846, 846). Petitioner's remaining contentions have been reviewed and determined to be without merit.
Adjudged that the determination is confirmed, without costs, and petition dismissed.