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Mitchell v. Selsky

252 A.D.2d 639 Court N.Y. App. Div. Decision date 1998-07-02 English

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p. 639
In the Matter of Marcus Mitchell, Petitioner, v Donald Selsky, as Department of Correctional Services Director of Inmate Disciplinary Programs, Respondent.
[675 NYS2d 197]

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 a prison disciplinary rule.

Substantial evidence supports the determination of respondent finding petitioner, a prison inmate, guilty of violating the prison disciplinary rule which prohibits the unauthorized use of a controlled substance. The misbehavior report, together with the positive results of two urinalysis tests indicating the presence of cannabinoids and the testimony of the correction officer who authored the misbehavior report and performed one

p. 640
of the urinalysis tests, amply support the determination of petitioner’s guilt (see, Matter of Lorusso v Goord, 248 AD2d 771 ). Contrary to petitioner’s contention, it was unnecessary for the Hearing Officer to assess the reliability of the confidential informant inasmuch as the determination of petitioner’s guilt was not dependent upon the confidential information but merely provided the suspicion prompting the request for petitioner’s urine sample (see, Matter of Brown v Coombe, 241 AD2d 644 ; Matter of Shaffer v Hoke, 174 AD2d 787 , 789-790; see also, 7 NYCRR 1020.4 [a] [1] [iii]). We have reviewed petitioner’s remaining contentions, including that he received inadequate employee assistance and his challenge to the chain of custody and the adequacy of the testing procedures used, and find them to be without merit.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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