| Matter of Frye v Commissioner of Correctional Servs. |
| 2010 NY Slip Op 00334 [69 AD3d 1074] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Marcus Frye, Petitioner, v Commissioner ofCorrectional 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 finding petitionerguilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with violating the prison disciplinary ruleprohibiting the use of a controlled substance after a sample of his urine twice tested positive forthe presence of cannabinoids. He was found guilty of the charge following a tier III hearing. Thedetermination was affirmed on administrative appeal, prompting petitioner to commence thisCPLR article 78 proceeding.
We confirm. The misbehavior report, together with the positive urinalysis test results andrelated documentation, as well as the hearing testimony, provide substantial evidence to supportthe determination of guilt (see Matter ofAllred v Goord, 48 AD3d 847, 848 [2008]; Matter of Marino v New York State Dept. of Correctional Servs., 41AD3d 1004, 1005 [2007], appeal dismissed and lv denied 9 NY3d 940 [2007]). Wereject petitioner's contention that he was denied a fair hearing due to the fact that the correctionofficer who actually tested petitioner's urine sample did not testify. As petitioner failed to requestthe appearance of this officer, he waived his right to present the officer's testimony (seeMatter of Valerio v Selsky, 306 AD2d 713, 713-714 [2003]). Regarding petitioner's claimthat the urinalysis test was faulty due to a discrepancy in the jargon used in the laboratory reportson the two positive test results, this was [*2]refuted by acorrection officer who testified that he was certified in the use of the urinalysis testing equipmentand that the discrepancy between the reports was unrelated to the actual test results. Thispresented a credibility issue for the Hearing Officer to resolve (see Matter of Booker v Artus, 51AD3d 1235 [2008]; Matter ofNelson v Goord, 37 AD3d 889, 889 [2007]). Petitioner's remaining contention has beenreviewed and found to be without merit.
Cardona, P.J., Spain, Rose, Malone Jr. and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.