| Matter of Duffy v Fischer |
| 2010 NY Slip Op 00333 [69 AD3d 1073] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Eugene Duffy, Petitioner, v Brian Fischer, asCommissioner 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 Albany County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
As the result of a suspected drug overdose, petitioner was taken by ambulance from thecorrectional facility where he was incarcerated to a local hospital. At the hospital, he wascatheterized and a sample of his urine was taken from the catheter bag for testing. He wasthereafter charged in a misbehavior report with using a controlled substance after his urinesample twice tested positive for the presence of opiates. Following a tier III disciplinary hearing,petitioner was found guilty of the charge. The determination was later affirmed on administrativeappeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the positive urinalysis test results andrelated documentation, as well as the testimony of the correction officer who obtained the urinesample from the hospital nurse and tested it, provide substantial evidence supporting thedetermination of guilt (see Matter ofGeraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58AD3d 968, 968 [2009]). Notably, petitioner did not present any proof to substantiate hisassertions that the urine sample was contaminated or that the catheter bag contained a leak.Moreover, we have considered petitioner's claims regarding alleged violations of 7 NYCRR1020.4 and find them to be without merit.[*2]
Peters, J.P., Spain, Rose, McCarthy and Garry, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.