Opinion
2013-12-19
In the Matter of Michael MULLAMPHY, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Michael Mullamphy, Coxsackie, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Michael Mullamphy, Coxsackie, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY and EGAN JR., 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 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 the presence of cannabinoids. He was found guilty of the charge following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive urinalysis test results and related documentation, together with the testimony of the correction officers who collected and tested petitioner's urine specimen, provide substantial evidence supporting the determination of guilt ( see Matter of Johnson v. Fischer, 104 A.D.3d 1007, 1007, 960 N.Y.S.2d 560 [2013]; Matter of Hyzer v. Fischer, 104 A.D.3d 983, 983, 960 N.Y.S.2d 275 [2013] ). Petitioner seeks to challenge the evidence upon which the determination is based by claiming that he provided two urine specimens, but that only one was used to support the charge. However, this claim was refuted by the collecting officer, who stated that the first specimen had to be discarded because petitioner contaminated it by pouring water in the specimen cup. The conflict in the testimony presented a credibility issue for the Hearing Officer to resolve ( see Matter of Coates v. Fischer, 108 A.D.3d 997, 998, 969 N.Y.S.2d 254 [2013]; Matter of Turner v. Fischer, 93 A.D.3d 987, 988, 939 N.Y.S.2d 735 [2012], lv. denied19 N.Y.3d 806, 2012 WL 2381137 [2012] ). Moreover, we find no merit to petitioner's contention that he was improperly denied a correction officer and a fellow inmate as witnesses, given that their proposed testimony pertained to a collateral matter and was irrelevant to the charge at issue ( see Matter of Blocker v. Fischer, 100 A.D.3d 1118, 1119, 953 N.Y.S.2d 388 [2012], lv. denied21 N.Y.3d 857, 2013 WL 2436255 [2013]; Matter of Mobayed v. Fischer, 89 A.D.3d 1266, 1267, 932 N.Y.S.2d 266 [2011] ). Petitioner's further assertion that he was denied a fair and impartial hearing is unavailing, as there is nothing in the record to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Donahue v. Fischer, 98 A.D.3d 784, 785, 948 N.Y.S.2d 778 [2012]; Matter of Bornstorff v. Bezio, 73 A.D.3d 1397, 1398, 903 N.Y.S.2d 168 [2012] ). Petitioner's remaining arguments have been considered and are either unpreserved for our review or lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.