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

IN RE: Gregory GOODWINE, Petitioner, v. Donald SELSKY, as Director of Special Housing, et al., Respondents.

Decided: November 27, 2002

Before:  MERCURE, J.P., SPAIN, CARPINELLO, MUGGLIN and KANE, JJ. Gregory Goodwine, Romulus, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Andrea Oser of counsel), 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting the unauthorized use of a controlled substance after his urine twice tested positive for the presence of opiates.   Substantial evidence of petitioner's guilt was presented at his disciplinary hearing in the form of the misbehavior report prepared by the correction officer who conducted the urinalysis testing, the hearing testimony of that officer and the supporting documentation relating to the urinalysis tests (see Matter of Woods v. Selsky, 291 A.D.2d 773, 774, 739 N.Y.S.2d 205;  Matter of Marano v. Goord, 247 A.D.2d 797, 669 N.Y.S.2d 438).

Petitioner gave exculpatory testimony, asserting that the positive urinalysis tests were the result of his ingestion of both cough syrup containing dextromethorphan and bread containing poppy seeds a few hours before the urinalysis testing.   He presented in evidence a wrapper which had allegedly contained the poppy seed bread and adduced testimony from a fellow inmate that the bread had been his and he had shared it with petitioner the day before the urinalysis testing.   Petitioner's assertions of false positive test results were countered by testimony elicited from a technical representative employed by the manufacturer of the testing system that was used to analyze petitioner's urine sample.   She averred that cough medicine containing dextromethorphan would not have caused a false positive test result and that the ingestion of poppy seeds in the amount alleged by petitioner was unlikely to have done so.   The conflict in the evidence presented at the hearing created an issue of credibility to be evaluated and resolved by the Hearing Officer (see Matter of Filbert v. Goord, 267 A.D.2d 536, 699 N.Y.S.2d 748;  Matter of Rivera v. Goord, 261 A.D.2d 754, 755, 691 N.Y.S.2d 207).   As the resulting determination was supported by substantial evidence, it will not be disturbed.   Petitioner's remaining contentions have been reviewed and found to be without merit.

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

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