IN RE: Leo A. MARINO (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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids.   He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

The misbehavior report, together with the positive urinalysis test results, supporting documentation and testimony at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Costner v. Goord, 31 A.D.3d 1030, 1030, 818 N.Y.S.2d 359 [2006];  Matter of Molina v. Selsky, 21 A.D.3d 1238, 1238-1239, 801 N.Y.S.2d 425 [2005] ).   Petitioner's claim that the misbehavior report was written in retaliation for his filing of a lawsuit against a correction official presented a credibility issue for the Hearing Officer to resolve (see Matter of Hoover v. Goord, 38 A.D.3d 1069, 831 N.Y.S.2d 602 [2007];  Matter of Dawkins v. Selsky, 278 A.D.2d 649, 649, 718 N.Y.S.2d 233 [2000] ).   Contrary to petitioner's assertion, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Cayenne v. Goord, 16 A.D.3d 782, 783-784, 790 N.Y.S.2d 762 [2005] ).   Petitioner's remaining contentions have been considered and are unpersuasive.

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