IN RE: Clyde THOMPSON (2007)

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After petitioner's urine sample twice tested positive for the presence of cannabinoids, he was charged in a misbehavior report with the unauthorized use of a controlled substance.   Petitioner was found guilty following a tier III disciplinary hearing, and the determination was upheld administratively.   This CPLR article 78 proceeding ensued.

 The misbehavior report, the positive results of two EMIT tests with supporting documents and the testimony of two correction officers, one of whom took the urine sample and the other of whom tested the sample, constitute substantial evidence in support of the disciplinary determination (see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 138, 524 N.Y.S.2d 30, 518 N.E.2d 924 [1987];  Matter of White v. Selsky, 32 A.D.3d 1101, 1101, 820 N.Y.S.2d 865 [2006];  Matter of Davis v. Goord, 8 A.D.3d 854, 855, 778 N.Y.S.2d 566 [2004] ).   Petitioner's contention that his urine sample was unlabeled and might have been confused with that of another inmate created a credibility issue for the Hearing Officer to resolve (see Matter of Harris v. Fletcher, 30 A.D.3d 948, 819 N.Y.S.2d 311 [2006];  Matter of Jamison v. Goord, 8 A.D.3d 860, 778 N.Y.S.2d 567 [2006];  Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714-715, 743 N.Y.S.2d 632 [2002] ).   Also, our review of the record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer (see Matter of Shicon v. Goord, 27 A.D.3d 811, 812, 811 N.Y.S.2d 165 [2006];  Matter of Cayenne v. Goord, 16 A.D.3d 782, 783-784, 790 N.Y.S.2d 762 [2005];  Matter of Sanchez v. Selsky, 8 A.D.3d 846, 846, 778 N.Y.S.2d 561 [2004] ).   Petitioner's remaining contentions have been reviewed and determined to be without merit.

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