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Lu v. New York State Department of Corrections

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


April 22, 2010

IN THE MATTER OF XAO HE LU, PETITIONER,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: March 1, 2010

Before: Cardona, P.J., Rose, Lahtinen, Kavanagh and Egan Jr., 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. He was found guilty of the charge following a tier III disciplinary hearing and that determination was later upheld on administrative appeal. This CPLR article 78 proceeding ensued.

Substantial evidence, consisting of the detailed misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the correction officer who tested the specimen, supports the determination of guilt (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Williams v Selsky, 45 AD3d 1023, 1023 [2007]). Although petitioner maintained that the test results were inaccurate and denied using illegal drugs, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Diaz v Smith, 54 AD3d 1080, 1081 [2008]; Matter of Booker v Artus, 51 AD3d 1235 [2008]).

Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.

Cardona, P.J., Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur.

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

20100422

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