Venegas v. Irvin

Apr 29, 1998
Versions:249 A.D.2d 982
672 N.Y.S.2d 200
1998 N.Y. App. Div. LEXIS 5137

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: We reject the contention of petitioner that there is insufficient evidence to support the determination finding him guilty of possessing drugs in violation of inmate rule 113.12 (7 NYCRR 270.2 [B] [14] [iii]). The misbehavior report, which states that a correction officer observed petitioner throw a marihuana cigarette on the floor of the prison yard, and the fact that the cigarette subsequently tested positive for marihuana constitute substantial evidence to support the determination (see, People ex rel. Vega v Smith, 66 NY2d 130,139). Contrary to petitioner’s contention, there is no requirement that additional tests be performed to confirm an initial positive NIK test result for marihuana (see, Matter of Darnell v Kulhmann, 145 AD2d 852, 853). The fact that the incident time indicated on the inmate misbehavior report is 9:00 p.m. and the testing of the marihuana was performed at 10:00 p.m. does not support petitioner’s contention that the misbehavior report was “prematurely concocted”. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Gorski, J.) Present — Denman, P. J., Green, Pigott, Jr., Callahan and Fallon, JJ.