| Matter of Genis v New York State Dept. of CorrectionalServs. |
| 2011 NY Slip Op 00311 [80 AD3d 1032] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Daniel Genis, Petitioner, v New York StateDepartment of Correctional Services, Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was suspected of using illegal drugs and, as a result, was directed to submit to aurinalysis test. He had difficulty providing a urine specimen although he was given aneight-ounce glass of water to drink each hour over a three-hour period. Petitioner ultimatelyprovided a specimen, but the correction officer who collected it discovered that it was ofinsufficient quantity to test. Thereafter, petitioner was charged in a misbehavior report withrefusing a direct order, failing to comply with urinalysis testing procedures and interfering withan employee. He was found guilty of all of the charges. The determination was later upheld onadministrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
Initially, respondent concedes and we agree that substantial evidence does not support thatpart of the determination finding petitioner guilty of interfering with an employee (see Matter of Valentino v Bezio, 72AD3d 1376, 1376 [2010]). On the other hand, with respect to the charges of refusing a directorder and failing to comply with urinalysis testing procedures, the misbehavior report,documentary evidence and testimony adduced at the hearing provide substantial evidencesupporting the determination of guilt (see Matter of Credle v Selsky, 46 [*2]AD3d 989, 990 [2007]; Matter of Levy v Goord, 22 AD3d 929, 929 [2005]). Although theregulations do not specifically set forth the size of the specimen required (see 7 NYCRRpart 1020), the certified testing officer stated that there was not enough of the substance providedby petitioner to perform the necessary tests (see Matter of Collucci v Goord, 305 AD2d825, 825 [2003]). Moreover, while petitioner maintained that certain medications he was takinginterfered with his ability to urinate and he submitted drug information to substantiate hisassertion, the facility physician provided testimony contradicting this claim and indicated thatpetitioner's medical records did not disclose that he had previously complained about this eventhough he had been taking the medications for some time (see e.g. Matter of Moreno v Goord, 30 AD3d 708, 709 [2006]).Accordingly, this presented a credibility issue for the Hearing Officer to resolve (see e.g. Matter of Liakis v Selsky, 50AD3d 1409, 1410 [2008]). Furthermore, we find nothing in the record to substantiatepetitioner's claim that the Hearing Officer should have recused himself or that petitioner wasdenied a fair and impartial hearing (seeMatter of Partee v Bezio, 67 AD3d 1224, 1225 [2009], lv denied 14 NY3d 702[2010]; Matter of Chavis v Goord, 8AD3d 786, 787 [2004]). His remaining contentions have either not been preserved for ourreview or are lacking in merit. Given that we are annulling that part of the determination findingpetitioner guilty of interfering with an employee and that a loss of good time was imposed, thematter must be remitted to the Commissioner of Correctional Services for a redetermination ofthe penalty on the remaining charges (see Matter of Cespedes v New York State Dept. of Correctional Servs.,68 AD3d 1429, 1430 [2009]).
Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof interfering with an employee and imposed a penalty; petition granted to that extent, theCommissioner of Correctional Services is directed to expunge all references thereto frompetitioner's institutional record and matter remitted to the Commissioner of Correctional Servicesfor an administrative redetermination of the penalty imposed on the remaining violations; and, asso modified, confirmed.