IN RE: Darryl McCORKLE

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

IN RE: Darryl McCORKLE, Petitioner, v. Floyd BENNETT, as Superintendent of Elmira Correctional Facility, Respondent.

Decided: June 24, 2004

Before:  CARDONA, P.J., CREW III, CARPINELLO, ROSE and LAHTINEN, JJ. Darryl McCorkle, Albion, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondent.

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 suspected of using drugs and required to provide a urine specimen, which tested positive for the presence of cannabinoids.   As a result, he was charged in a misbehavior report with using a controlled substance.   Following a tier III disciplinary hearing, petitioner was found guilty as charged.   The determination of guilt was upheld on administrative appeal, with a modified penalty, and this CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, positive urinalysis test results and testimony of the correction officer who tested petitioner's urine specimen provide substantial evidence to support the determination (see Matter of Alexander v. Goord, 3 A.D.3d 638, 771 N.Y.S.2d 207 [2004];  Matter of Felton v. Selsky, 2 A.D.3d 1033, 768 N.Y.S.2d 416 [2003], lv. dismissed 2 N.Y.3d 758, 778 N.Y.S.2d 775, 811 N.E.2d 37 [2004] ).   We find no error in the denial of petitioner's request to have the request for urinalysis form of another inmate admitted in evidence at the hearing as it was irrelevant to the charge against petitioner (see Matter of Spirles v. Goord, 308 A.D.2d 610, 611, 764 N.Y.S.2d 218 [2003];  Matter of Weatherly v. Goord, 268 A.D.2d 642, 643, 701 N.Y.S.2d 675 [2000] ).   Furthermore, we are unpersuaded by petitioner's claim of hearing officer bias as the record discloses that the hearing was conducted in a fair and impartial manner, and there is no indication that the determination flowed from any alleged bias (see Matter of Johnson v. Goord, 4 A.D.3d 582, 584, 771 N.Y.S.2d 577 [2004], lv. denied 2 N.Y.3d 708, 781 N.Y.S.2d 290, 814 N.E.2d 462 [June 10, 2004];  Matter of Simpson v. Goord, 308 A.D.2d 641, 642, 764 N.Y.S.2d 368 [2003], lv. denied 2 N.Y.3d 704, 778 N.Y.S.2d 774, 811 N.E.2d 36 [2004] ).   Petitioner's remaining contentions are either unpreserved or lacking in merit.

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

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