Opinion
2014-04-24
In the Matter of David REDMOND, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
David Redmond, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
David Redmond, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 certain prison disciplinary rules.
Petitioner did not provide a urine specimen for testing, as he was ordered to do, despite being given three eight-ounce glasses of water and three hours within which to provide a specimen. He was charged in a misbehavior report with refusing a direct order and violating urinalysis testing procedures, was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmedon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, related documentation and petitioner's admission that he did not produce the specimen provide substantial evidence supporting the determination of guilt ( see Matter of Becker v. Goord, 13 A.D.3d 947, 948, 787 N.Y.S.2d 441 [2004] ). Although petitioner claimed that he was unable to provide the specimen due to a medical condition, he submitted no evidence to substantiate his claim and his testimony presented a credibility issue for the Hearing Officer to resolve ( see Matter of Credle v. Selsky, 46 A.D.3d 989, 990, 846 N.Y.S.2d 797 [2007] ). Petitioner's remaining contentions have been considered and are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. PETERS, P.J., LAHTINEN, McCARTHY and ROSE, JJ., concur.