Matter of Albarella v Selsky

Matter of Albarella v Selsky 2008 NY Slip Op 04421 [51 AD3d 1241] May 15, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 16, 2008

In the Matter of Gregory Albarella, Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Gregory Albarella, Gouverneur, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (William E. Storrs 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Having twice tested positive for opiates, petitioner was charged in a misbehavior report with using a controlled substance. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged. Upon administrative appeal, that determination was affirmed with a modified penalty. Petitioner then commenced this CPLR article 78 proceeding seeking annulment. We now confirm.

The determination of guilt is supported by substantial evidence including the misbehavior report and testimony from the correction officer who authored it (see Matter of Rodriguez v Selsky, 47 AD3d 1173, 1173 [2008]). Petitioner's remaining contentions, including his claim that drug testing rules and regulations were not followed, have been examined and found to be unavailing.

Mercure, J.P., Peters, Spain, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.