| Matter of Sterling v Fischer |
| 2010 NY Slip Op 05838 [75 AD3d 709] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Dwayne Sterling, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in St. Lawrence County) to review a determination of respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner, a prison inmate, was instructed to produce a urine sample for a random drug testand failed to do so within the allotted three hours, despite being permitted to consume aneight-ounce glass of water each hour. He was subsequently charged in a misbehavior report witha violation of urinalysis testing procedures and, after a tier III disciplinary hearing, was foundguilty as charged. Following an unsuccessful administrative appeal, petitioner commenced thisCPLR article 78 proceeding.
The misbehavior report, along with petitioner's testimony at the hearing, provide substantialevidence to support the determination of guilt (see Matter of Gomez v Fischer, 70 AD3d 1076 [2010]; Matter of Valerio v New York State Dept.of Correctional Servs., 67 AD3d 1228 [2009]). In the absence of any substantiatingevidence, petitioner's claim that a medical condition prevented him from providing a urinesample presented a credibility determination for the Hearing Officer to resolve (see Matter of Fort v Fischer, 52 AD3d1148 [2008]; Matter of Credle vSelsky, 46 AD3d 989, 990 [2007]).[*2]
Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ.,concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.