IN RE: Luis MENA

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

IN RE: Luis MENA, Petitioner, v. Glenn GOORD, as Commissioner of the Department of Correctional Services, et al., Respondents.

Decided: December 21, 2000

Before:  CREW III, J.P., PETERS, CARPINELLO and ROSE, JJ. Luis Mena, Malone, petitioner in person. Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of using a controlled substance after his urine sample twice tested positive for marihuana.   Contrary to petitioner's contention, the two positive urinalysis test results and the testimony of the correction officer who conducted the tests in accordance with proper procedures constitutes substantial evidence of petitioner's guilt (see, Matter of Byas v. Goord, 272 A.D.2d 800, 801, 708 N.Y.S.2d 509, lv. denied 95 N.Y.2d 765;  Matter of Aviles v. Selsky, 264 A.D.2d 883, 884, 696 N.Y.S.2d 87).   Although a subsequent urine sample provided by petitioner tested negative for marihuana, the evidence presented at the hearing indicates that the negative reading was not inconsistent with a finding that marihuana was present in petitioner's system when the previous urine sample was taken and did not necessarily render the positive test results unreliable.   Petitioner's remaining arguments have been reviewed and found to be without merit.

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

MEMORANDUM DECISION.

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