IN RE: MARCUS FRYE (2010)

MEMORANDUM AND JUDGMENT

Calendar Date:  November 4, 2009

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 finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting the use of 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 hearing.   The determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm.   The misbehavior report, together with the positive urinalysis test results and related documentation, as well as the hearing testimony, provide substantial evidence to support the determination of guilt (see Matter of Allred v. Goord, 48 AD3d 847, 848 [2008];  Matter of Marino v New York State Dept. of Correctional Servs., 41 AD3d 1004, 1005 [2007], appeal dismissed and lv. denied 9 NY3d 940 [2007] ).   We reject petitioner's contention that he was denied a fair hearing due to the fact that the correction officer who actually tested petitioner's urine sample did not testify.   As petitioner failed to request the appearance of this officer, he waived his right to present the officer's testimony (see Matter of Valerio v. Selsky, 306 A.D.2d 713, 713-714 [2003] ).   Regarding petitioner's claim that the urinalysis test was faulty due to a discrepancy in the jargon used in the laboratory reports on the two positive test results, this was refuted by a correction officer who testified that he was certified in the use of the urinalysis testing equipment and that the discrepancy between the reports was unrelated to the actual test results.   This presented a credibility issue for the Hearing Officer to resolve (see Matter of Booker v. Artus, 51 AD3d 1235, 1235 [2008];  Matter of Nelson v. Goord, 37 AD3d 889, 889 [2007].   Petitioner's remaining contention has been reviewed and found to be without merit.

Cardona, P.J., Spain, Rose, Malone Jr. and Garry, JJ., concur.

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

ENTER:

Michael J. Novack

Clerk of the Court