Opinion
2012-03-8
In the Matter of James CURRY, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
James Curry, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
James Curry, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 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 cocaine and opiates. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the positive urinalysis test results, related documentation and hearing testimony, provide substantial evidence supporting the determination of guilt ( see Matter of Geraci v. Fischer, 63 A.D.3d 1467, 1468, 880 N.Y.S.2d 865 [2009]; Matter of Smith v. Dubray, 58 A.D.3d 968, 968, 871 N.Y.S.2d 758 [2009] ). Petitioner's claim that recently prescribed medication caused a false positive test result was contradicted by the testing correction officer who, after checking with the facility pharmacy, stated that petitioner had been off the medication long enough to avoid interference with the test results, thus presenting a credibility issue for the Hearing Officer to resolve ( see Matter of Lunney v. Selsky, 34 A.D.3d 955, 956, 823 N.Y.S.2d 317 [2006], lv. denied 8 N.Y.3d 802, 830 N.Y.S.2d 698, 862 N.E.2d 790 [2007]; Matter of Figueroa v. Goord, 15 A.D.3d 705, 706, 788 N.Y.S.2d 731 [2005] ). Therefore, we find no reason to disturb the determination.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.