Opinion
2011-09-29
In the Matter of Kevin MOSS, Petitioner,v.Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
Kevin Moss, Beacon, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondents.
Kevin Moss, Beacon, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondents.
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 using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. 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. The misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the author of the report and the SYVA representative, provide substantial evidence supporting the determination of guilt ( see Matter of Hayes v. Fischer, 73 A.D.3d 1360, 899 N.Y.S.2d 915 [2010]; Matter of Frye v. Commissioner of Correctional Servs., 69 A.D.3d 1074, 1074, 893 N.Y.S.2d 366 [2010] ). Contrary to petitioner's assertion, the chain of custody of the sample was properly established by the information contained on the request for urinalysis test form and the testimony of the correction officer who collected and tested the sample ( see Matter of Coleman v. Fischer, 81 A.D.3d 1018, 916 N.Y.S.2d 846 [2011]; Matter of Stanford v. Fischer, 77 A.D.3d 1013, 1014, 908 N.Y.S.2d 760 [2010] ). Moreover, while petitioner maintained that testing equipment produced false positive results because of authorized medications that he was taking, the SYVA representative specifically refuted this theory, thereby presenting a credibility issue for the Hearing Officer to resolve ( see Matter of Livingston v. Fischer, 52 A.D.3d 1152, 1153, 862 N.Y.S.2d 135 [2008], lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008]; Matter of Booker v. Artus, 51 A.D.3d 1235, 858 N.Y.S.2d 451 [2008] ). Petitioner's remaining contentions
have either not been preserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.