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Cushing-Gale v. Smith

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


May 27, 2010

IN THE MATTER OF CHRISTOPHRE CUSHING-GALE, PETITIONER,
v.
JOSEPH T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Peters, J.P., Rose, Kavanagh, McCarthy 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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a hearing, petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized use of a controlled substance after two drug tests produced positive results for the presence of cannabinoids in his urine. The determination was affirmed upon administrative review, and this CPLR article 78 proceeding ensued.

As the determination is supported by substantial evidence in the form of the misbehavior report, hearing testimony and documentary evidence, it must be confirmed (see Matter of Garcia v Fischer, 68 AD3d 1311, 1312 [2009]; Matter of Graziano v Selsky, 9 AD3d 752, 752 [2004]). While the misbehavior report cites the incident as occurring at the time of the first drug test, the report itself and the testimony of the correction officer who prepared it establish that the report was not issued until the requisite two tests had been conducted (see 7 NYCRR 1020.4 [e] [1] [iv]; Matter of Graziano v Selsky, 9 AD3d at 752; Matter of Martin v Coughlin, 193 AD2d 989, 990 [1993]). Moreover, contrary to petitioner's argument, recalibration of the testing machine after each test was not required, and the evidence demonstrated that the tests were appropriately conducted (see 7 NYCRR 1020.4 [e] [1] [iv]; Matter of Scott v Fischer, 57 AD3d 1035, 1035 n 1 [2008], lv denied 12 NY3d 705 [2009]; Matter of Somerville v Goord, 12 AD3d 823, 823-824 [2004]).

Peters, J.P., Rose, Kavanagh, McCarthy and Egan Jr., JJ., concur.

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

20100527

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