IN RE: Derron TOOMER

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

IN RE: Derron TOOMER, Petitioner, v. Glenn GOORD, as Commissioner of Correctional Services, Respondent.

Decided: January 24, 2002

Before:  MERCURE, J.P., CREW III, SPAIN, ROSE and LAHTINEN, JJ. Derron Toomer, Ossining, petitioner pro se. Eliot Spitzer, Attorney-General (Peter H. Schiff of counsel), Albany, for respondent.

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules prohibiting possession of contraband and narcotics after a random search of his cell revealed a green, leafy substance hidden in the bottom of a deodorant container.   Petitioner was the only resident of the cell, and a subsequent test of the substance was positive for marihuana.

The evidence presented at petitioner's disciplinary hearing included the misbehavior report and the testimony of the correction officer who found the contraband and performed the test.   Documentation of the testing, also submitted in evidence, sufficiently established the chain of custody and the adequacy of the testing procedure (see, 7 NYCRR 1020.4[e];  see also, Matter of Burse v. Goord, 274 A.D.2d 678, 679, 710 N.Y.S.2d 201).

We conclude that substantial evidence supports the determination of petitioner's guilt (see, Matter of Laureano v. Senkowski, 277 A.D.2d 613, 715 N.Y.S.2d 924;  Matter of Maldonado v. Goord, 270 A.D.2d 742, 704 N.Y.S.2d 383).   The claim that he was “set up” by a correction officer against whom petitioner had filed a grievance presented an issue of credibility for resolution by the Hearing Officer (see, Matter of Grof v. Goord, 278 A.D.2d 650, 718 N.Y.S.2d 234).   Petitioner's remaining contentions have been examined and found to be without merit.

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

ROSE, J.

MERCURE, J.P., CREW III, SPAIN and LAHTINEN, JJ., concur.

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