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Hill v. Smith

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


May 27, 2010

IN THE MATTER OF JAMES HILL, PETITIONER,
v.
JOSEPH SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Cardona, P.J., Mercure, Peters, Malone Jr. and Kavanagh, 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.

After petitioner's urine sample twice tested positive for opiates, a misbehavior report was served accusing him of illegal drug use. Petitioner was found guilty and, following an unsuccessful administrative appeal, he commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, positive test results and related documentation provide substantial evidence supporting the determination of guilt (see Matter of White v Superintendent of Wyoming Correctional Facility, 69 AD3d 1180, 1181 [2010]; Matter of Horne v Fischer, 60 AD3d 1233 [2009]). Contrary to petitioner's contention, neither departmental directives nor the directions for use of the testing apparatus required that it be recalibrated on a fixed schedule (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]). Likewise, the correction officer who performed the urinalysis tests was certified to use the testing device and explained the proper testing procedure, and petitioner's request to call a representative of the device's manufacturer to testify was appropriately denied as redundant (see Matter of Graziano v Selsky, 9 AD3d 752, 753 [2004]; Matter of Herring v Goord, 300 AD2d 724, 725 [2002], lv denied 99 NY2d 510 [2003]). Nor are we persuaded that petitioner's alleged drug addiction, without more, called his mental state into issue so as to require the testimony of his substance abuse counselors (see 7 NYCRR 254.6 [b] [1] [viii]; Matter of Tafari v Selsky, 45 AD3d 1139, 1139 [2007], lv dismissed 10 NY3d 827 [2008]). His remaining arguments have been reviewed and found to be without merit.

Cardona, P.J., Mercure, Peters, Malone Jr. and Kavanagh, JJ., concur.

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

20100527

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