Matter of Wolfgang v Goord

2007 NY Slip Op 07048 [43 AD3d 1262]

September 27, 2007

Appellate Division, Third Department

As corrected through Wednesday, November 7, 2007

In the Matter of Joseph Wolfgang, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, et al., Respondents.

—[*1]Joseph Wolfgang, Comstock, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), forrespondents.

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 Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with violating the prison disciplinary ruleprohibiting the use of drugs after a sample of his urine twice tested positive for opiates.Following a tier III disciplinary hearing, he was found guilty of that charge. Petitioner exhaustedhis administrative remedies and then commenced this CPLR article 78 proceeding challengingthe determination.

The misbehavior report, positive urinalysis test results and hearing testimony providesubstantial evidence of petitioner's guilt (see Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], lvdenied 8 NY3d 816 [2007]). Petitioner's defense that his ingestion of poppy seed crackersresulted in a false positive test result created a credibility issue for resolution by the HearingOfficer (see Matter of Shabazz vSelsky, 12 AD3d 795, 796 [2004]).

To the extent preserved, the remaining claims advanced by petitioner have been [*2]examined and found to be unavailing.

Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.