Matter of Gibson v Fischer

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Matter of Gibson v Fischer 2013 NY Slip Op 07105 Decided on October 31, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 31, 2013
515791

[*1]In the Matter of JOHNATHAN GIBSON, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: September 18, 2013
Before: Peters, P.J., Rose, Lahtinen and Spain, JJ.


Johnathan Gibson, Gowanda, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff 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, a prison inmate, was charged in a misbehavior report with drug use after his urine twice tested positive for cocaine. He was found guilty as charged following a tier III disciplinary hearing, although the imposed penalty was modified upon administrative review. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. Substantial evidence supports the determination in the form of the misbehavior report, the test results and the testimony of the correction officer who authored the report and conducted the tests (see Matter of Mannino v Fischer, 102 AD3d 1032, 1032 [2013], lv denied 21 NY3d 855 [2013]; Matter of Xao Le Hu v New York State Dept. of Corrections, 72 AD3d 1379, 1380 [2010]). The officer testified that it was possible for the second test to detect a higher amount of cocaine than the first, and petitioner's claims to the contrary presented a credibility issue for the Hearing Officer to resolve (see Matter of Xao He Lu v New York State [*2]Dept. of Corrections, 72 AD3d at 1380). Petitioner's remaining arguments, to the extent they are properly before us, have been considered and found to be lacking in merit.

Peters, P.J., Rose, Lahtinen and Spain, JJ., concur.

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

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