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Cannon v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 14, 2009

IN THE MATTER OF PHILLIP CANNON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: April 8, 2009

Before: Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ.

MEMORANDUM AND JUDGMENT

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 which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of using illicit drugs following a tier III disciplinary hearing. That determination was administratively affirmed and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. The determination of guilt is supported by substantial evidence consisting of the misbehavior report, related documentation and positive drug test results (see Matter of Martinez v Goord, 48 AD3d 851, 851 [2008]). Contrary to petitioner's assertion, there was no requirement that the second drug test be conducted by someone other than the person who conducted the first test (see Matter of Odome v Goord, 14 AD3d 975, 976 [2005]). As for petitioner's claim of hearing officer bias, it is wholly unsubstantiated by the record and, further, there is no indication that the determination in issue flowed from any alleged bias (see Matter of Riley v Fischer, 58 AD3d 976, 976 [2009]).

We have examined petitioner's remaining contentions and, to the extent preserved, find them to be unavailing.

Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20090514

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