Matter of Redmond v Fischer

Matter of Redmond v Fischer 2014 NY Slip Op 02813 Decided on April 24, 2014 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: April 24, 2014
515176

[*1]In the Matter of DAVID REDMOND, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: February 25, 2014
Before: Peters, P.J., Lahtinen, McCarthy and Rose, JJ.


David Redmond, Attica, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondent.


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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner did not provide a urine specimen for testing, as he was ordered to do, despite being given three eight-ounce glasses of water and three hours within which to provide a specimen. He was charged in a misbehavior report with refusing a direct order and violating urinalysis testing procedures, was found guilty of the charges 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, related documentation and petitioner's admission that he did not produce the specimen provide substantial evidence supporting the determination of guilt (see Matter of Becker v Goord, 13 AD3d 947, 948 [2004]). Although petitioner claimed that he was unable to provide the specimen due to a medical condition, he submitted no evidence to substantiate his claim and his testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Credle v Selsky, 46 AD3d 989, 990 [2007]). Petitioner's remaining contentions have been considered and are lacking in merit. [*2]

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

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