Matter of Gasbara v. Selsky

Full title: In the Matter of MATTHEW J. GASBARA, Petitioner v. DONALD SELSKY, as…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 13, 2000

268 A.D.2d 732 (N.Y. App. Div. 2000)

702 N.Y.S.2d 157

Opinion

January 13, 2000

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.

Matthew J. Gasbara, Dannemora, petitioner in person.

Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

Before: CARDONA, P.J., CREW III, PETERS, SPAIN and GRAFFEO, JJ.

MEMORANDUM AND JUDGMENT

GRAFFEO, J.

Petitioner, an inmate, was found guilty of using a controlled substance in violation of a prison disciplinary rule after two urinalysis tests performed on his urine sample yielded positive results for the presence of opiates. He thereafter commenced this CPLR article 78 proceeding challenging the determination of his guilt and the matter was transferred to this court.

We confirm. Petitioner primarily contends that the determination is not supported by substantial evidence because the positive urinalysis test results were attributable to the prescription sleeping medication he was taking when his urine was tested. According to the testimony of a SYVA technical specialist and a facility psychiatrist, however, petitioner's medication would not result in a false-positive reading for opiates. This proof, together with the misbehavior report and the positive results of the urinalysis tests, provide substantial evidence of petitioner's guilt (see, Matter of Rivera v. Goord, 258 A.D.2d 858;Matter of Rodriguez v. Coombe, 249 A.D.2d 655).

Moreover, although the correction officer who authored the misbehavior report apparently discussed the chemical structure of petitioner's medication with the SYVA technical specialist outside of petitioner's presence, this did not deprive petitioner of a fair hearing inasmuch as the specialist subsequently testified in petitioner's presence and there was evidence to corroborate his opinion that petitioner's medication did not influence the urinalysis test results (see, Matter of Frazier v. Goord, 251 A.D.2d 800, lv denied 92 N.Y.2d 813).

Petitioner's remaining contentions are either unpreserved for our review or without merit.

CARDONA, P.J., CREW III, PETERS and SPAIN, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.