Sow v. Selsky

May 13, 2004
Versions:7 A.D.3d 903
775 N.Y.S.2d 919
2004 N.Y. App. Div. LEXIS 6719

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 was found guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled *904substance after his urine twice tested positive for the presence of cannabinoids. The positive test results and testimony at the hearing, including that from the syva representative indicating that the medications that petitioner was taking would not cause a false positive based upon prior testing of the medication or the chemical compounds thereof, provide substantial evidence to support the determination of guilt (see Matter of Harris v Goord, 273 AD2d 599, 600 [2000], lv dismissed 95 NY2d 917 [2000]; Matter of Bacchic v Lacy, 267 AD2d 524 [1999]).

Petitioner’s argument that the hearing was not completed within the 14-day limit is incorrect, as the Hearing Officer received an extension within that time period and completed the hearing within that extended period (see Matter of Carina v Goord, 270 AD2d 663 [2000]). Finally, the Hearing Officer properly considered petitioner’s prior disciplinary history in determining the appropriate disposition.

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