Opinion
73 A.D.3d 1418 904 N.Y.S.2d 231 In the Matter of James HILL, Petitioner, v. Joseph SMITH, as Superintendent of Shawangunk Correctional Facility, Respondent. 2010-04493 Supreme Court of New York, Third Department May 27, 2010
James Hill, Wallkill, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: CARDONA, P.J., MERCURE, PETERS, MALONE JR. and KAVANAGH, JJ.
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.
After petitioner's urine sample twice tested positive for opiates, a misbehavior report was served accusing him of illegal drug use. Petitioner was found guilty and, following an unsuccessful administrative appeal, he commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, positive test results and related documentation provide substantial evidence supporting the determination of guilt ( see Matter of White v. Superintendent of Wyoming Correctional Facility, 69 A.D.3d 1180, 1181, 895 N.Y.S.2d 216 [2010]; Matter of Horne v. Fischer, 60 A.D.3d 1233, 874 N.Y.S.2d 394 [2009] ). Contrary to petitioner's contention, neither departmental directives nor the directions for use of the testing apparatus required that it be recalibrated on a fixed schedule ( see Matter of Smith v. Dubray, 58 A.D.3d 968, 969, 871 N.Y.S.2d 758 [2009] ). Likewise, the correction officer who performed the urinalysis tests was certified to use the testing device and explained the proper testing procedure, and petitioner's request to call a representative of the device's manufacturer to testify was appropriately denied as redundant ( seeMatter of Graziano v. Selsky, 9 A.D.3d 752, 753, 779 N.Y.S.2d 848 [2004]; Matter of Herring v. Goord, 300 A.D.2d 724, 725, 750 N.Y.S.2d 373 [2002], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 101, 790 N.E.2d 275 [2003] ). Nor are we persuaded that petitioner's alleged drug addiction, without more, called his mental state into issue so as to require the testimony of his substance abuse counselors ( see 7 NYCRR 254.6[b][1][viii]; Matter of Tafari v. Selsky, 45 A.D.3d 1139, 1139, 844 N.Y.S.2d 913 [2007], lv. dismissed 10 N.Y.3d 827, 858 N.Y.S.2d 653, 888 N.E.2d 394 [2008] ). His remaining arguments have been reviewed and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.