Opinion
April 19, 1996
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Lawton, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: We confirm the determination of respondent that petitioner violated inmate rule 113.12 ( 7 NYCRR 270.2 [B] [14] [iii]), which prohibits the use of a controlled substance. The positive result of an EMIT test, when confirmed, as here, by the result of a second EMIT test, constitutes substantial evidence to support that determination ( see, Matter of Lahey v Kelly, 71 N.Y.2d 135, 138; Matter of McKins v. Coughlin, 142 A.D.2d 987, lv denied 74 N.Y.2d 603).
We reject the argument of petitioner that the Hearing Officer was required to conduct further investigation in response to his assertion that a particular medication had been omitted from the list of medications that he had taken in the prior 30 days ( see, 7 NYCRR 1020.4 [d] [2]). The Hearing Officer was entitled to rely upon the list, which was prepared by the medical department and signed by a registered nurse. Petitioner's assertion that a particular medication had been omitted from the list raised a credibility issue, which the Hearing Officer was entitled to resolve against petitioner ( see, Matter of Perez v Wilmot, 67 N.Y.2d 615, 617; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 140).