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Rampersant v. Fischer

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


July 29, 2010

IN THE MATTER OF DELMAR RAMPERSANT, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 9, 2010

Before: Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, 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 use of a controlled substance after his urine twice tested positive for opiates. Following a tier III disciplinary hearing, petitioner was found guilty. The determination was affirmed on administrative appeal, after which he commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, positive drug tests and testimony of the correction officer who performed the tests provide substantial evidence to support the determination of guilt (see Matter of Giap v Fischer, 69 AD3d 1079, 1079 [2010]; Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]). Petitioner's assertion that the misbehavior report was in retaliation for a past confrontation with the correction officer who authored the report raised an issue of credibility to be determined by the Hearing Officer (see Matter of Williams v Fischer, 69 AD3d 1278, 1278 [2010]; Matter of Brown v Fischer, 67 AD3d 1221, 1221 [2009]). Contrary to petitioner's claims, the record reveals that a proper chain of custody was maintained throughout the collection and testing of petitioner's urine specimen, and there is no evidence that the specimen was either tampered with or confused with another sample (see Matter of Giap v Fischer, 69 AD3d at 1079-1080; Matter of Townes v Fischer, 68 AD3d 1294 [2009]). Finally, our review of the record reveals that the determination was the result of the evidence presented against petitioner, rather than any bias on the part of the Hearing Officer (see Matter of Bermudez v Fischer, 71 AD3d 1361, 1361-1362 [2010], lv denied ___ NY3d ___ [June 29, 2010]; Matter of Pettus v New York State Dept. of Correctional Servs., 70 AD3d 1164, 1164 [2010]).

We have examined petitioner's remaining contentions, including his claim that the penalties imposed were unduly harsh, and have found them to be without merit.

Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur.

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

20100729

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