IN RE: Detroy LIVINGSTON

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

IN RE: Detroy LIVINGSTON, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent.

Decided: June 26, 2008

Before:  PETERS, J.P., SPAIN, LAHTINEN, KAVANAGH and STEIN, JJ. Detroy Livingston, Malone, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Having twice tested positive for cannabinoids, petitioner was charged in a misbehavior report with using a controlled substance.   Following a tier III disciplinary hearing, petitioner was found guilty as charged.   That determination was administratively affirmed and this CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report, together with the positive urinalysis test results and related documentation, as well as the testimony adduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Griffin v. Goord, 47 A.D.3d 1046, 1046, 848 N.Y.S.2d 549 [2008] ).   Petitioner's claim that certain medication that he was taking caused a false positive was refuted by the SYVA representative, thus creating a credibility issue for resolution by the Hearing Officer (see Matter of Lunney v. Selsky, 34 A.D.3d 955, 956, 823 N.Y.S.2d 317 [2006] ).   We have examined petitioner's remaining assertions, that he was deprived of adequate employee assistance and denied the right to present witness testimony, and find them to be unavailing.

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

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