Opinion
2013-04-25
In the Matter of Robert BOVE, Petitioner, v. DEPARTMENT OF CORRECTIONAL SERVICES et al., Respondents.
Robert Bove, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Robert Bove, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
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 A.D.3d 1029, 1029, 907 N.Y.S.2d 522 [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 A.D.3d 984, 984, 939 N.Y.S.2d 732 [2012];Matter of Lunney v. Selsky, 34 A.D.3d 955, 956, 823 N.Y.S.2d 317 [2006],lv. denied8 N.Y.3d 802, 830 N.Y.S.2d 698, 862 N.E.2d 790 [2007];cf. Matter of Townes v. Fischer, 68 A.D.3d 1294, 1295, 890 N.Y.S.2d 708 [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.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.