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Claim of Grochulski v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
May 15, 2003
305 A.D.2d 823 (N.Y. App. Div. 2003)

Opinion

91829

Decided and Entered: May 15, 2003.

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Bethmann Law Firm P.C., Baldwinsville (Hollie E. Bethmann of counsel), for petitioner.

Eliot Spitzer, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Mercure, J.P., Crew III, Peters, Rose and Lahtinen, JJ.


MEMORANDUM AND JUDGMENT


A search of petitioner's belongings uncovered two bags containing residue of a "green leafy substance" located in his locker, which subsequent NIK testing revealed to be marihuana. Petitioner was found guilty of violating prison disciplinary rules prohibiting inmates from possessing controlled substances. In our view, the misbehavior report, the laboratory test result and the testimony of the reporting correction officer provide substantial evidence to support the Hearing Officer's determination. Notably, the reporting correction officer, who was trained in NIK testing procedures, testified that he performed NIK test "E" in accordance with procedures and that the positive test result confirmed his initial belief that the substance was marihuana.

Despite petitioner's claims to the contrary, the misbehavior report properly set out the date, time and place of the incident as required by 7 NYCRR 251-3.1(c)(3), a proper chain of custody was established (see Matter of Knight v. Selsky, 297 A.D.2d 845, 846; Matter of Smart v. Gould, 266 A.D.2d 606, 607) and multiple tests were not required to confirm the initial positive NIK test result (see Matter of Cliff v. Kingsley, 293 A.D.2d 954, 954; Matter of Darnell v. Kuhlman, 145 A.D.2d 852, 853). Further, in light of petitioner's three prior drug-related disciplinary violations, the penalty for the instant violation, namely, nine months in the special housing unit, one year loss of good time and one year loss of privileges, was not "so harsh as to shock one's sense of fairness" (Matter of Britt v. New York State Dept. of Correstions, 283 A.D.2d 751, 751; see Matter of Kelley v. Goord, 274 A.D.2d 705, lv denied 95 N.Y.2d 768). Petitioner's remaining contentions, including his allegations of hearing officer bias, have been considered and found to be unavailing.

Mercure, J.P., Crew III, Rose and Lahtinen, JJ., concur.

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


Summaries of

Claim of Grochulski v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
May 15, 2003
305 A.D.2d 823 (N.Y. App. Div. 2003)
Case details for

Claim of Grochulski v. Selsky

Case Details

Full title:In the Matter of the Claim of KENNETH GROCHULSKI, Petitioner, v. DONALD…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 15, 2003

Citations

305 A.D.2d 823 (N.Y. App. Div. 2003)
758 N.Y.S.2d 547

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