IN RE: JENNIFER WADE

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Supreme Court, Appellate Division, Fourth Department.

IN RE: JENNIFER WADE, PETITIONER, v. D. VENETTOZZI, DIRECTOR OF SPECIAL HOUSING, INMATE DISCIPLINARY PROGRAM, P. BARHITE, SORC/HEARING OFFICER, R. GOODMAN, CAPTAIN/HEARING OFFICER, AND D. SARRATORI, CORRECTION OFFICER, RESPONDENTS. JENNIFER WADE, PETITIONER

TP 17–00549

Decided: September 29, 2017

PRESENT:  WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS.

MEMORANDUM AND ORDER

PRO SE.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Orleans County [James P. Punch, A.J.], entered March 20, 2017) to review a determination that found, after a tier III hearing, that petitioner had violated an inmate rule.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum:  Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul a determination finding her guilty, following a tier III hearing, of violating inmate rule 113.24 (7 NYCRR 270.2[B][14][xiv] [drug use] ).  Contrary to petitioner's contention, the testimony and evidence presented at the hearing, including the positive results of two urinalysis tests indicating the presence of opiates, constitute substantial evidence to support the determination (see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 138).  The conflicting testimony on the issue whether the positive test results were caused by the alleged consumption of poppy seed dressing raised an issue of credibility for resolution by the Hearing Officer (see e.g. Matter of Gonzalez v. Selsky, 301 A.D.2d 1019, 1019–1020;  Matter of Wood v. Selsky, 240 A.D.2d 876, 877;  see generally Matter of Foster v Coughlin, 76 N.Y.2d 964, 966).

Mark W. Bennett

Clerk of the Court