| Matter of Cannon v Fischer |
| 2009 NY Slip Op 03807 [62 AD3d 1109] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Phillip Cannon, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Clinton County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner, a prison inmate, was found guilty of using illicit drugs following a tier IIIdisciplinary hearing. That determination was administratively affirmed and this CPLR article 78proceeding seeking annulment ensued.
We confirm. The determination of guilt is supported by substantial evidence consisting ofthe misbehavior report, related documentation and positive drug test results (see Matter of Martinez v Goord, 48AD3d 851, 851 [2008]). Contrary to petitioner's assertion, there was no requirement that thesecond drug test be conducted by someone other than the person who conducted the first test (see Matter of Odome v Goord, 14AD3d 975, 976 [2005]). As for petitioner's claim of hearing officer bias, it is whollyunsubstantiated by the record and, further, there is no indication that the determination in issueflowed from any alleged bias (see Matter of Riley v Fischer, 58 AD3d 976, 976 [2009]).
We have examined petitioner's remaining contentions and, to the extent preserved, find [*2]them to be unavailing.
Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.