Opinion
No. 780 TP 22-00825
11-18-2022
IN THE MATTER OF DAVID SELL, PETITIONER, v. C. YEHL, SUPERINTENDENT, WENDE CORRECTIONAL FACILITY, RESPONDENT.
LOU FOX, BROOKLYN, FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT.
LOU FOX, BROOKLYN, FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Paul Wojtaszek, J.], entered May 17, 2022) to review a determination of respondent. The determination found after a tier II hearing that petitioner had violated a disciplinary rule.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II disciplinary hearing, that he violated inmate rule 113.31 (7 NYCRR 270.2 [B] [14] [xxi] [alcohol use]). We reject petitioner's contention that the determination is not supported by substantial evidence. Petitioner's differing version of events and his assertion that the officer's testimony was inconsistent "created credibility issues for the Hearing Officer to resolve" (Matter of Sherman v Annucci, 142 A.D.3d 1196, 1197 [3d Dept 2016]; see generally Matter of Foster v Coughlin, 76 N.Y.2d 964, 966 [1990]).
Contrary to petitioner's contention, he "was not entitled to a copy of the instruction manual for the testing equipment" used to process his urine sample (Matter of Matthews v Annucci, 162 A.D.3d 1432, 1433 [3d Dept 2018]; see Matter of Morrishill v Prack, 120 A.D.3d 1474, 1474 [3d Dept 2014], lv granted 24 N.Y.3d 914 [2015], appeal withdrawn 25 N.Y.3d 948 [2015]; Matter of Cureton v Goord, 262 A.D.2d 1031, 1031 [4th Dept 1999]). Contrary to petitioner's further contention, the documents he requested from the independent testing laboratory "were either unavailable, irrelevant, or duplicative of other evidence in the record" (Matter of Rincon v Selsky, 28 A.D.3d 565, 566 [2d Dept 2006]), and thus "the record establishes that petitioner received all the relevant and available documents to which he was entitled" (Matter of Farrington v Annucci, 148 A.D.3d 1810, 1811 [4th Dept 2017] [internal quotation marks omitted]).
We have reviewed petitioner's remaining contentions and conclude that none warrants a different result.