Opinion
519773
2015-06-25
In the Matter of Jerard WALKER, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.
Jerard Walker, Romulus, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Platkin, J.), entered July 30, 2014 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
After his urine sample twice tested positive for the presence of cannibinoids, petitioner was charged with the unauthorized use of a controlled substance. He was found guilty of that charge following a tier III disciplinary hearing and, other than a modification of the penalty imposed, the determination was upheld on administrative appeal. Thereafter, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.
Initially, we note that although petitioner's challenge to the sufficiency of the urinalysis test results raises an issue of substantial evidence and, therefore, the matter should have been transferred to this Court ( see Matter of Crosby v. Goord, 38 A.D.3d 1110, 1110, 833 N.Y.S.2d 674 [2007]; Matter of Jackson v. Smith, 6 A.D.3d 1016, 1017, 775 N.Y.S.2d 611 [2004], lv. denied3 N.Y.2d 667, 784 N.Y.S.2d 4, 817 N.E.2d 821 [2004] ), we will consider the issues de novo and render judgment accordingly ( see Matter of Brooks v. Unger, 110 A.D.3d 1122 n., 972 N.Y.S.2d 740 [2013] ). The misbehavior report, results of the urinalysis tests and the testimony at the hearing provided substantial evidence to support the determination of guilt ( see Matter of Bowen v. Annucci, 122 A.D.3d 980, 980, 994 N.Y.S.2d 476 [2014]; Matter of Jackson v. Annucci, 121 A.D.3d 1483, 1483, 994 N.Y.S.2d 460 [2014] ). The alleged inconsistencies between the time of the second test performed and when the urine sample was destroyed were sufficiently explained through the testimony of the correction officer, which verified that proper testing procedures were followed ( see Matter of Crosby v. Goord, 38 A.D.3d at 1110, 833 N.Y.S.2d 674; Matter of White v. Selsky, 32 A.D.3d 1101, 1101, 820 N.Y.S.2d 865 [2006]; Matter of Perez v. Goord, 274 A.D.2d 706, 707, 711 N.Y.S.2d 217 [2000] ). Petitioner's remaining contentions, including that the Hearing Officer was biased, have been reviewed and found to be without merit.
ORDERED that the judgment is affirmed, without costs.