Matter of Smith v Unger

Matter of Matter of Smith v Unger 2012 NY Slip Op 07739 Decided on November 15, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 15, 2012
514085

[*1]In the Matter of TITUS SMITH, Petitioner,

v

DAVID UNGER, as Superintendent of Wyoming Correctional Facility, et al., Respondents.

Calendar Date: September 26, 2012
Before: Rose, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ.


Titus Smith, Beacon, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Marcus J. Mastracco of counsel), for respondents.


MEMORANDUM AND JUDGMENT

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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of opiates. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, the positive test results and related documentation and the testimony of the correction officer who conducted the tests provide substantial evidence supporting the determination of guilt (see Matter of Curry v Fischer, 93 AD3d 984, 984 [2012]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]). Although petitioner contends that an incorrect identification number appeared on the documentation containing the positive test results, this discrepancy was adequately explained by the testing officer who testified at the hearing that this was a typographical error and further confirmed that the sample that tested [*2]positive for opiates belonged to petitioner, thereby remedying any deficiency (see Matter of Vargas v Bezio, 69 AD3d 1075, 1075-1076 [2010]; Matter of Victor v Goord, 309 AD2d 1026, 1026-1027 [2003]). Petitioner's remaining contentions have not been preserved for our review.

Rose, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur.

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