Opinion
12-15-2016
In the Matter of Kenneth SMITH, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Kenneth Smith, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Kenneth Smith, Comstock, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, LYNCH, MULVEY and AARONS, 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was ordered to submit a urine specimen for testing, and it twice tested positive for the presence of cannabinoids. As a result, he was charged in a misbehavior report with violating the disciplinary rule that prohibits the use of controlled substances. Following a tier III disciplinary hearing, he was found guilty of the charge and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report and testimony of its author who performed the tests, as well as the positive test results and related documents, provide substantial evidence supporting the determination of guilt (see Matter of Benitez v. Annucci, 139 A.D.3d 1215, 1215, 29 N.Y.S.3d 831 [2016] ). A facility nurse who reviewed petitioner's medical records testified that, contrary to his claim, none of the medications that petitioner was taking at the time of the test would have produced a positive test result, creating a credibility question for the Hearing Officer to resolve (see Matter of Coons v. Fischer, 106 A.D.3d 1302, 1303, 964 N.Y.S.2d 778 [2013] ). Any error in the testing officer contacting facility medical staff about petitioner's medications just before the hearing, rather than immediately after the positive test results, had no bearing on the outcome. As the nurse and testing officer testified, petitioner's request to call the officer who collected the specimen to testify about why facility medical staff were not contacted earlier was properly denied as irrelevant (see Matter of Jones v. Fischer, 138 A.D.3d 1294, 1295, 31 N.Y.S.3d 228 [2016] ).
Petitioner claims that the reason for the urinalysis test was invalid and did not comply with 7 NYCRR 1020.4(a). The request for urinalysis form stated that the request was based upon an "[o]ngoing investigation into drug activity inside [the] facility," although petitioner was told that it was based upon "suspicion," which was circled on the request form. However, petitioner agreed at the hearing that the reason given qualified it as a random drug test, which is permitted (see 7 NYCRR 1020.4 [a][7] ). Inasmuch as the Hearing Officer did not rely on confidential information, the circumstances leading to the test request were irrelevant (see Matter of Jackson v. Annucci, 121 A.D.3d 1483, 1483, 994 N.Y.S.2d 460 [2014] ; Matter of Selah v. LaValley, 117 A.D.3d 1261, 1261, 984 N.Y.S.2d 895 [2014] ; Matter of Land v. Fischer, 100 A.D.3d 1170, 1170, 953 N.Y.S.2d 408 [2012] ). Further, petitioner's request to call the sergeant who requested the test was properly denied as his testimony was irrelevant (see Matter of Hyatt v. Annucci, 141 A.D.3d 977, 978–979, 34 N.Y.S.3d 915 [2016] ). Petitioner's remaining claims, to the extent that they are preserved for our review, have been reviewed and determined to also lack merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.