Lunney v. Selsky

Nov 9, 2006
Versions:34 A.D.3d 955
823 N.Y.S.2d 317

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.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of controlled substances after a sample of his urine twice tested positive for the presence of opiates. Inasmuch as the misbehavior report and the positive test results, together with the testimony at the hearing, provide substantial evidence of petitioner‘s guilt, the determination will not be disturbed (see Matter of Hayes v Goord, 26 AD3d 546 [2006]; Matter of Molina v Selsky, 21 AD3d 1238, 1238-1239 [2005]). The testimony of the facility nurse and the correction officer who performed the test refuted petitioner‘s claim that certain medications he had received caused a false positive test result, thus creating a credibility issue for the Hearing Officer to resolve (see Matter of Figueroa v Goord, 15 AD3d 705, 706 [2005]; Matter of Vourderis v Selsky, 4 AD3d 667, 668 [2004]).

Petitioner‘s remaining contentions, including his claim of ineffective employee assistance, have been reviewed and determined to be without merit.

Spain, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.