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Sterling v. Fischer

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


July 1, 2010

IN THE MATTER OF DWAYNE STERLING, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 12, 2010

Before: Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was instructed to produce a urine sample for a random drug test and failed to do so within the allotted three hours, despite being permitted to consume an eight-ounce glass of water each hour. He was subsequently charged in a misbehavior report with a violation of urinalysis testing procedures and, after a tier III disciplinary hearing, was found guilty as charged. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

The misbehavior report, along with petitioner's testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Gomez v Fischer, 70 AD3d 1076 [2010]; Matter of Valerio v New York State Dept. of Correctional Servs., 67 AD3d 1228 [2009]). In the absence of any substantiating evidence, petitioner's claim that a medical condition prevented him from providing a urine sample presented a credibility determination for the Hearing Officer to resolve (see Matter of Fort v Fischer, 52 AD3d 1148 [2008]; Matter of Credle v Selsky, 46 AD3d 989, 990 [2007]).

Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ., concur.

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

20100701

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