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In the Matter of Robert Bove v. Department of Correctional Services et al

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


April 25, 2013

IN THE MATTER OF ROBERT BOVE, PETITIONER,
v.
DEPARTMENT OF CORRECTIONAL SERVICES ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: February 25, 2013

Before: Peters, P.J., Mercure, Stein 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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was dispatched to a hospital. Drug tests performed at the hospital and upon his return to the prison indicated that he had unprescribed antidepressants in his system. He was charged with violating various prison disciplinary rules as a result and, following a tier III disciplinary hearing, was found guilty of drug use and possessing unauthorized medication. Petitioner's administrative appeal was unsuccessful, and he thereafter commenced this CPLR article 78 proceeding.

The misbehavior report, testimony of the nurse who authored it, and petitioner's multiple positive drug test results provide substantial evidence to support the determination (see Matter of Reese v Bezio, 75 AD3d 1029, 1029 [2010]). Petitioner's claim that his prescribed medications could cause a false positive result was contradicted by the nurse, who testified that both a pharmacy and an outside testing laboratory had ruled out such an outcome, and the resulting credibility issue was properly resolved by the Hearing Officer (see Matter of Curry v Fischer, 93 AD3d 984, 984 [2012]; Matter of Lunney v Selsky, 34 AD3d 955, 956 [2006], lv denied 8 NY3d 802 [2007]; cf. Matter of Townes v Fischer, 68 AD3d 1294, 1295 [2009]).

We have considered petitioner's remaining arguments and, to the extent they are properly preserved for our review, find them to be without merit.

Peters, P.J., Mercure, Stein and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130425

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