Opinion
2012-08-2
In the Matter of William DONAHUE, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
William Donahue, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.
William Donahue, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, SPAIN, McCARTHY and GARRY, JJ.
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 his urine twice tested positive for the presence of opiates, petitioner was charged in a misbehavior report with using a controlled substance. 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.
We confirm. The misbehavior report, the positive urinalysis test results and related documentation, as well as the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt ( see Matter of Curry v. Fischer, 93 A.D.3d 984, 984, 939 N.Y.S.2d 732 [2012];Matter of Neil v. Fischer, 89 A.D.3d 1308, 1309, 932 N.Y.S.2d 740 [2011],lv. denied18 N.Y.3d 807, 2012 WL 490143 [2012] ). Petitioner's defense that the positive test results were attributable either to his ingestion of prescription medication or crackers containing poppy seeds presented a credibility issue for the Hearing Officer to resolve ( see Matter of Moss v. Prack, 87 A.D.3d 1255, 1256, 930 N.Y.S.2d 311 [2011];Matter of Shabazz v. Selsky, 12 A.D.3d 795, 796, 783 N.Y.S.2d 884 [2004] ). Furthermore, upon reviewing the record, we reject petitioner's assertion that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Turner v. Fischer, 93 A.D.3d 987, 988, 939 N.Y.S.2d 735 [2012],lv. denied19 N.Y.3d 806, 2012 WL 2381137 [June 26, 2012];Matter of Ellison v. Fischer, 63 A.D.3d 1382, 1383, 880 N.Y.S.2d 578 [2009] ). Petitioner's remaining arguments have either not been preserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.