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Duffy v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


January 14, 2010

IN THE MATTER OF EUGENE DUFFY, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Peters, J.P., Spain, Rose, McCarthy and Garry, JJ.

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 respondent which found petitioner guilty of violating a prison disciplinary rule.

As the result of a suspected drug overdose, petitioner was taken by ambulance from the correctional facility where he was incarcerated to a local hospital. At the hospital, he was catheterized and a sample of his urine was taken from the catheter bag for testing. He was thereafter charged in a misbehavior report with using a controlled substance after his urine sample twice tested positive for the presence of opiates. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the positive urinalysis test results and related documentation, as well as the testimony of the correction officer who obtained the urine sample from the hospital nurse and tested it, provide substantial evidence supporting the determination of guilt (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]). Notably, petitioner did not present any proof to substantiate his assertions that the urine sample was contaminated or that the catheter bag contained a leak. Moreover, we have considered petitioner's claims regarding alleged violations of 7 NYCRR 1020.4 and find them to be without merit.

Peters, J.P., Spain, Rose, McCarthy and Garry, JJ., concur.

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

20100114

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