Opinion
529105
11-07-2019
In the Matter of Edward HARRISON, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Edward Harrison, Ogdensburg, petitioner pro se. Letitia James, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Edward Harrison, Ogdensburg, petitioner pro se.
Letitia James, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Devine and Pritzker, 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
After a sample of petitioner's urine twice tested positive for the presence of buprenorphine, he was charged in a misbehavior report with using a controlled substance. Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The disciplinary determination is supported by substantial evidence consisting of the misbehavior report, positive urinalysis test results and related documentation, as well as the testimony adduced at the hearing (see Matter of Onega v. Rodriquez, 173 A.D.3d 1590, 1590, 101 N.Y.S.3d 665 [2019] ; Matter of Ayuso v. Venettozzi, 170 A.D.3d 1407, 1407, 96 N.Y.S.3d 705 [2019] ; Matter of Hernandez v New York State Dept. of Corr. & Community Supervision, 167 A.D.3d 1206, 1206, 87 N.Y.S.3d 908 [2018] ; see also Public Health Law § 3306[III][e][7] ; 7 NYCRR 270.2 [B][14][xiv] ). Petitioner's contention that the basis for the drug test was allegedly missing from the request for urinalysis form is belied by the form itself, which reflects that the circumstances leading to the drug test were "suspicion, red eyes, [and] slurred speech" (see 7 NYCRR 1020.4 [a][1] ). Petitioner also conceded at the hearing that the medication that he was taking would not produce positive drug test results. Further, petitioner's denial that he used a controlled substance presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Ayuso v. Venettozzi, 170 A.D.3d at 1407, 96 N.Y.S.3d 705 ). Finally, the Hearing Officer's denial of petitioner's requested witness whose testimony would have been irrelevant to the determination of guilt does not demonstrate that the Hearing Officer was biased (see Matter of Horton v. Annucci, 163 A.D.3d 1385, 1386, 80 N.Y.S.3d 744 [2018] ; Matter of Cotterell v. Taylor–Stewart, 145 A.D.3d 1245, 1246, 44 N.Y.S.3d 228 [2016] ), and there is nothing in the record to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Hernandez v New York State Dept. of Corr. & Community Supervision, 167 A.D.3d at 1206, 87 N.Y.S.3d 908 ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are lacking in merit. Therefore, we decline to disturb the disciplinary determination.
Egan Jr., J.P., Lynch, Devine and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.