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In the Matter of Israel Vega v. Norman Bezio

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


April 18, 2013

IN THE MATTER OF ISRAEL VEGA, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: February 25, 2013

Before: Mercure, J.P., Rose, Stein and Garry, 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 Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged with violating the prison disciplinary rule prohibiting the use of a controlled substance after his urine twice tested positive for the presence of opiates. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, positive urinalysis test results and related documentation and the hearing testimony provide substantial evidence to support the determination of guilt (see Matter of Neil v Fischer, 89 AD3d 1308, 1309 [2011], lv denied 18 NY3d 807 [2012]). Contrary to petitioner's arguments, that evidence amply established the chain of custody of the specimen and laid a foundation to permit consideration of the positive test results (see 7 NYCRR 1020.4, 1020.5; Matter of Neil v Fischer, 89 AD3d at 1309; Matter of Rowe v Goord, 289 AD2d 764, 765 [2001]). His remaining contentions have been considered and, to the extent they are properly before us, rejected.

Mercure, J.P., Rose, Stein and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130418

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