Devivo v. New York State Department of Correctional Services

Jun 5, 2003
Versions:306 A.D.2d 600
759 N.Y.S.2d 709
2003 N.Y. App. Div. LEXIS 6299

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine twice tested positive for the presence of opiates. We reject petitioner’s assertion that the misbehavior report was defective because the correction officer who col*601lected his urine did not endorse the misbehavior report. The incident of misconduct arose from the positive results of the drug test and not at the time the urine sample was collected (see e.g. Matter of Diaz v Dowling, 251 AD2d 929, 930 [1998]). The misbehavior report written by the correction officer who conducted the urinalysis tests, the two positive test results and supporting documents, together with the hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of Passon v Goord, 301 AD2d 977 [2003]). We also find unavailing petitioner’s assertion that he was denied the right to present a defense. The record establishes that defendant’s claim that medications he was taking produced a false positive was refuted by testimony at the hearing and by reference to the SYVA drug testing manual. The remaining contentions, including that petitioner received inadequate employee assistance and his urine sample was not properly labeled, have been reviewed and found to be without merit.

Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.