Opinion
May 30, 1997
Present — Denman, P.J., Green, Doerr, Balio and Fallon, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner violated inmate rule 113.12 ( 7 NYCRR 270.2[B][14] [iii]) by possessing an opiate is supported by substantial evidence (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). Although the SYVA test manual indicates that an ingredient in the cough syrup medication taken by petitioner "could" cause a false positive result, hearsay evidence provided by facility medical personnel and the toxicology laboratory utilized by respondent establish that petitioner did not ingest enough of the cough syrup to cause a false positive result. Further, the record does not support the contention that the Hearing Officer improperly considered petitioner's previous drug violations as evidence of guilt of the instant offense (cf., Matter of Lonski v Coughlin, 126 A.D.2d 981, 982). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.)