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In re Gibson

Supreme Court of New York, Third Department

October 31, 2013

In the Matter of JOHNATHAN GIBSON, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: September 18, 2013.

Johnathan Gibson, Gowanda, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

Before: Peters, P.J., Rose, Lahtinen and Spain, JJ.

MEMORANDUM AND JUDGMENT

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 a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with drug use after his urine twice tested positive for cocaine. He was found guilty as charged following a tier III disciplinary hearing, although the imposed penalty was modified upon administrative review. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. Substantial evidence supports the determination in the form of the misbehavior report, the test results and the testimony of the correction officer who authored the report and conducted the tests (see Matter of Mannino v Fischer, 102 A.D.3d 1032, 1032 [2013], lv denied 21 N.Y.3d 855 [2013]; Matter of Xao Le Hu v New York State Dept. of Corrections, 72 A.D.3d 1379, 1380 [2010]). The officer testified that it was possible for the second test to detect a higher amount of cocaine than the first, and petitioner's claims to the contrary presented a credibility issue for the Hearing Officer to resolve (see Matter of Xao He Lu v New York State Dept. of Corrections, 72 A.D.3d at 1380). Petitioner's remaining arguments, to the extent they are properly before us, have been considered and found to be lacking in merit.

Peters, P.J., Rose, Lahtinen and Spain, JJ., concur.

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


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