| Matter of Liakis v Selsky |
| 2008 NY Slip Op 03534 [50 AD3d 1409] |
| April 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Nicholas Liakis, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
Contrary to petitioner's assertion, the underlying misbehavior report is sufficient to supportthe finding that petitioner violated urinalysis testing procedures by failing to provide a urinesample within the time allotted when ordered to do so by facility personnel (see Matter of Levy v Goord, 22 AD3d929 [2005]). Petitioner also acknowledged his failure to provide a sample within thethree-hour time period. To the extent that petitioner contends that he takes prescriptionmedication that interferes with his ability to urinate, we need note only that the record as a wholedoes not substantiate his claim. To be sure, the documentation offered by petitioner and thetestimony of a facility nurse establishes that an inability to urinate is one of the possible sideeffects of the medication petitioner has been prescribed. However, petitioner acknowledged at thetier III disciplinary hearing that he neither mentioned this issue to the medical personnel norrequested a sick call at the facility where this incident occurred, and the portion of petitioner'smedical file reviewed at the hearing makes no mention of his alleged difficulties in this regard.Hence, without proper supporting documentation, petitioner's assertions presented a credibilityissue for the Hearing Officer to resolve (see Matter of Credle v [*2]Selsky, 46AD3d 989, 990 [2007]; Matter of Cruz v Goord, 302 AD2d 816 [2003]). Finally, wereject petitioner's claim that he was denied relevant witnesses at the hearing, as the transcriptthereof reflects that he did not request any witnesses.
Peters, J.P., Rose, Kane, Malone Jr. and Stein, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.