IN RE: Joseph MARANO

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

IN RE: Joseph MARANO, Petitioner, v. Glenn S. GOORD, as Commissioner of the Department of Correctional Services, Respondent.

Decided: February 26, 1998

Before CARDONA, P.J., and MIKOLL, MERCURE, CREW and YESAWICH, JJ. Joseph Marano, Wallkill, in person. Dennis C. Vacco, Attorney General (Patrick Barnett-Mulligan, of counsel), Albany, 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule that prohibits the unauthorized use of controlled substances after two urinalysis tests resulted in positive readings for the presence of opiates.   Petitioner challenges the determination of his guilt, asserting, inter alia, that it was not based upon substantial evidence.   We disagree.   Included in the evidence presented against petitioner at his disciplinary hearing was documentation relating to the positive results of the urinalysis tests, the misbehavior report and the testimony of the correction officers who authored the misbehavior report and conducted the urinalysis tests.   This was sufficient to constitute substantial evidence of petitioner's guilt (see, Matter of Bonilla v. Coombe, 221 A.D.2d 782, 633 N.Y.S.2d 668, lv. denied 87 N.Y.2d 807, 641 N.Y.S.2d 829, 664 N.E.2d 895).   Petitioner's unsupported assertion that the positive results of the urinalysis tests were caused by his ingestion of a poppy-seed roll is unsubstantiated by the record and was rebutted by a correction officer who testified that food embedded with poppy seeds is never permitted in the facility.   We conclude that this testimony raised an issue of credibility for resolution by the Hearing Officer (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Fleming v. Coughlin, 222 A.D.2d 835, 836, 634 N.Y.S.2d 890).   Petitioner's remaining contentions have been examined and found to be without merit.

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

MEMORANDUM DECISION.

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