Gasbara v. Selsky

Graffeo, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule. Petitioner, an inmate, was found guilty of using a controlled substance in violation of a prison disciplinary rule after two urinalysis tests performed on his urine sample yielded positive results for the presence of opiates. He thereafter commenced this CPLR article 78 proceeding challenging the determination of his guilt and the matter was transferred to this Court. We confirm. Petitioner primarily contends that the determination is not supported by substantial evidence because the positive urinalysis test results were attributable to the prescription sleeping medication he was taking when his urine was tested. According to the testimony of a SYVA technical specialist and a facility psychiatrist, however, petitioner’s medication would not result in a false-positive reading for opiates. This proof, together with the misbehavior report and the positive results of the urinalysis tests, provide substantial evidence of petitioner’s guilt (see, Matter of Rivera v Goord, 258 AD2d 858; Matter of Rodriguez v Coombe, 249 AD2d 655). Moreover, although the correction officer who authored the misbehavior report apparently discussed the chemical structure of petitioner’s medication with the SYVA technical specialist outside of petitioner’s presence, this did not deprive petitioner of a fair hearing inasmuch as the specialist subsequently testified in petitioner’s presence and there was evidence to corroborate his opinion that petitioner’s medication did not influence the urinalysis test results (see, Matter of Frazier v Goord, 251 AD2d 800, lv denied 92 NY2d 813). Petitioner’s remaining contentions are either unpreserved for our review or without merit. Cardona, P. J., Crew III, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.