IN RE: Juan TORO

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Juan TORO, Petitioner, v. Glenn S. GOORD, as Commissioner of the State of New York Department of Correctional Services, et al., Respondents.

Decided: June 21, 2001

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and ROSE, JJ. Juan Toro, Cape Vincent, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

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 certain prison disciplinary rules.

 Petitioner was found guilty of violating the prison disciplinary rules that prohibit the unauthorized use of a controlled substance, harassment, threats and refusing to obey a direct order.   He challenges the determination of his guilt on the ground that it was not based on substantial evidence.   We disagree.   Evidence presented at the disciplinary hearing included two misbehavior reports, the positive results of two urinalysis tests, the testimony of a facility employee who had witnessed the charged acts of misconduct and the testimony of a representative of the manufacturer of the urinalysis apparatus used at the facility, who opined that none of the medications being taken by petitioner at the time the tests were conducted could possibly have produced a false positive urinalysis test result.   We find this sufficient to constitute substantial evidence supporting the determination of petitioner's guilt (see, Matter of Mason v. Goord, 251 A.D.2d 829, 830, 675 N.Y.S.2d 157;  Matter of Murphy v. Selsky, 239 A.D.2d 724, 725, 657 N.Y.S.2d 496).   Petitioner's contention that he has a hearing impairment that disabled him from participating in his defense is belied by the hearing transcript wherein it is apparent that petitioner understood the statements made by the participants and was able to respond by mounting a vigorous defense on his own behalf (see, Matter of Moore v. Selsky, 264 A.D.2d 923, 924, 694 N.Y.S.2d 818).

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

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