IN RE: Dino ALEXANDER (2004)

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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine twice tested positive for the presence of opiates.   The misbehavior report, the positive test results and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Gonzalez v. Selsky, 301 A.D.2d 1019, 1019-1020, 753 N.Y.S.2d 759 [2003] ).   Contrary to petitioner's claim of hearing officer bias, the record discloses that the hearing was conducted in a fair and impartial manner (see Matter of Wilson v. Selsky, 287 A.D.2d 847, 731 N.Y.S.2d 280 [2001] ).   The Hearing Officer considered petitioner's defense that the four poppy seed bagels petitioner claimed to have eaten could have caused a false positive.   The conflicting testimony from the correction officer who denied that she provided petitioner with bagels and from the representative of the SYVA corporation indicating that, although poppy seeds could cause a false positive, petitioner consumed only a small amount, presented a credibility issue for the Hearing Officer to evaluate and resolve (see Matter of Gonzalez v. Selsky, supra at 1020, 753 N.Y.S.2d 759;  Matter of Goodwine v. Selsky, 299 A.D.2d 782, 782-783, 751 N.Y.S.2d 77 [2002] ).   To the extent that petitioner claims that he was denied the right to present a witness, the record establishes that the testimony of the witness requested would be irrelevant to the drug use charge (see Matter of Hynes v. Goord, 305 A.D.2d 829, 830, 758 N.Y.S.2d 552 [2003], lv. denied 100 N.Y.2d 510, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003];  Matter of Loper v. McGinnis, 295 A.D.2d 777, 778, 744 N.Y.S.2d 517 [2002] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.