State of New York Supreme Court, Appellate Division Third Judicial Department
September 22, 2011
IN THE MATTER OF MARK POLITE, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: July 27, 2011
Before: Spain, J.P., Malone Jr., Stein, 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 which found petitioner guilty of violating a prison disciplinary rule.
Petitioner, a prison inmate, was required to submit to a drug test and his urine twice tested positive for cannabinoids. Accordingly, he was served with a misbehavior report charging him with drug use and, following a tier III disciplinary hearing, he was convicted of that charge. The determination was upheld on administrative appeal with a reduced penalty, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, supporting documentation, positive test results and testimony from the correction officer who performed the tests provide substantial evidence to support the determination of guilt (see Matter of Henriquez v Bezio, 84 AD3d 1662, 1663 ; Matter of Hughes v Bezio, 84 AD3d 1598 ). To the extent that there were minor discrepancies between the testimony of the correction officers present when petitioner's urine sample was collected, that raised an issue of credibility to be resolved by the Hearing Officer (see Matter of Piper v Bezio, 81 AD3d 1049, 1050 ; Matter of Key v Fischer, 72 AD3d 1365, 1366 ). Finally, we find that the determination of guilt resulted from the evidence presented at the hearing rather than any alleged hearing officer bias (see Matter of Weems v Fischer, 82 AD3d 1454, 1456 ; Matter of Mayo v Fischer, 82 AD3d 1421, 1422 , lv denied 17 NY3d 702 ).
We have examined petitioner's remaining contentions and find them to be without merit.
Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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