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In re Jones

Supreme Court of New York, Third Department

February 6, 2014

In the Matter of CHARLES JONES, Petitioner,
v.
D. VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: January 2, 2014

Charles Jones, Stormville, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Peters, P.J., Stein, McCarthy and Garry, 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 which found petitioner guilty of violating a prison disciplinary rule.

After a sample of petitioner's urine twice tested positive for the presence of THC, he was charged in a misbehavior report with using drugs. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. [1]

We confirm. Initially, we reject petitioner's claim that he was improperly denied certain documentary evidence at the hearing, specifically the operator's manual and manufacturer's guidelines for the urinalysis testing machine (see Matter of Anderson v Prack, 111 A.D.3d 1214, 1214 [2013]; Matter of Davis v Goord, 268 A.D.2d 932, 932-933 [2000], lv denied 95 N.Y.2d 751 [2000]). Moreover, the record reveals that petitioner was provided with all of the urinalysis testing documentation mandated by the pertinent regulation (see 7 NYCRR 1020.4 [f] [1] [iv]).

Petitioner further asserts that he was improperly denied witnesses, specifically unidentified medical staff familiar with his urinary difficulties, whose testimony would have allegedly supported his defense that he was unable to provide a urine specimen for testing and that the positive test results were fabricated. However, the urinalysis test documentation and testimony of the two correction officers involved established that petitioner did, in fact, provide a urine specimen. Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Mannino v Fischer, 102 A.D.3d 1032, 1032-1033 [2013], lv denied 21 N.Y.3d 855 [2013]). In view of the foregoing, we find no reason to disturb the determination of guilt.

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

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


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