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Johnson v. Fischer

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


May 20, 2010

IN THE MATTER OF ANTHONY JOHNSON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Mercure, J.P., Rose, Malone Jr., Stein 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was served with a misbehavior report charging him with using a controlled substance after his urine sample twice tested positive for cannabinoids. Following a tier III disciplinary hearing, he was found guilty and that determination was affirmed on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, along with the positive test results, provide substantial evidence to support the determination of petitioner's guilt (see Matter of White v Superintendent of Wyoming Correctional Facility, 69 AD3d 1180, 1181 [2010]; Matter of Duffy v Fischer, 69 AD3d 1073, 1074 [2010]). Furthermore, contrary to petitioner's contention, all of the necessary documentation required to support the admission of the positive test results into evidence was contained in the hearing record (see 7 NYCRR 1020.5 [a] [1]; Matter of Smart v Fischer, 67 AD3d 1222, 1222 [2009], lv denied 14 NY3d 705 [2010]; Matter of Karapetian v Fischer, 65 AD3d 772 [2009]).

Petitioner's remaining contentions have been examined and are without merit.

Mercure, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ., concur.

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

20100520

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