Matter of John Suggs v David L. Miller

Matter of Suggs v Miller 2005 NYSlipOp 07756 October 20, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

In the Matter of John Suggs, Petitioner, v David L. Miller, as Superintendent of Eastern Correctional Facility, Respondent.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine sample twice tested positive for the presence of cannabinoids. Inasmuch as the misbehavior report, positive test results and supporting documentation, together with the testimony at the hearing, constitute substantial evidence of petitioner's guilt, the determination will not be disturbed (see Matter of Paige v Goord, 19 AD3d 908 [2005]; Matter of Sow v Selsky, 7 AD3d 903, 904 [2004]). Furthermore, it was within the province of the Hearing Officer to resolve the credibility issue arising from petitioner's defense that the medications he was taking resulted in the positive test results and the contrary testimony from a technician specialist employed by the manufacturer of the testing equipment that, although not individually tested, the differing chemical and molecular structures between the subject medications and cannabis would not result in a false positive (see Matter of Figueroa v Goord, 15 AD3d 705 [2005]; Matter of Townes v Goord, 14 AD3d 754, 755 [2005]).

Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur. [*2]Adjudged that the determination is confirmed, without costs, and petition dismissed.