Matter of Livingston v Fischer

2008 NY Slip Op 05856

Decided on June 26, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 26, 2008
504064



Calendar Date: May 14, 2008
Before: Peters, J.P., Spain, Lahtinen, Kavanagh and Stein, JJ.


Detroy Livingston, Malone, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Frank
Brady of counsel), for respondent.


MEMORANDUM AND JUDGMENT

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 which found petitioner guilty of violating a prison disciplinary rule.

Having twice tested positive for cannabinoids, petitioner was charged in a misbehavior report with using a controlled substance. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was administratively affirmed and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the positive urinalysis test results and related documentation, as well as the testimony adduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Griffin v Goord, 47 AD3d 1046, 1046 [2008]). Petitioner's claim that certain medication that he was taking caused a false positive was refuted by the SYVA representative, thus creating a credibility issue for resolution by the Hearing Officer (see Matter of Lunney v Selsky, 34 AD3d 955, 956 [2006]). We have examined petitioner's remaining assertions, that he was deprived of adequate employee assistance and denied the right to present witness testimony, and find them to be unavailing.

Peters, J.P., Spain, Lahtinen, Kavanagh and Stein, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.