Coons v. Fischer

• Decision Date: 16 May 2013
• Citation: 2013 N.Y. Slip Op. 03528,106 A.D.3d 1302,964 N.Y.S.2d 778
• Parties: In the Matter of David COONS, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1302
964 N.Y.S.2d 778
2013 N.Y. Slip Op. 03528

In the Matter of David COONS, Petitioner,
v.
Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

May 16, 2013.

David Coons, Auburn, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: PETERS, P.J., STEIN, SPAIN and GARRY, JJ.

[106 A.D.3d 1303]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.

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

We confirm. The detailed misbehavior report, together with the positive urinalysis test results and related documentation, as well as the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt ( see Matter of Curry v. Fischer, 93 A.D.3d 984, 984, 939 N.Y.S.2d 732 [2012];Matter of Hart v. Fischer, 89 A.D.3d 1357, 1357, 934 N.Y.S.2d 533[2011],lv. denied18 N.Y.3d 808, 2012 WL 952792 [2012] ). Although petitioner maintained that medications he was taking for a chronic health condition caused false positive test results, the testimony of a pharmacist and a physician familiar with petitioner's medications contradicted his claim. Accordingly, this presented an issue of credibility for the Hearing Officer to resolve ( see Matter of Curry v. Fischer, 93 A.D.3d at 984, 939 N.Y.S.2d 732;Matter of Suggs v. Miller, 22 A.D.3d 910, 910–911, 802 N.Y.S.2d 775 [2005] ). Moreover, contrary to petitioner's contention, the transcript does not reveal the existence of

[964 N.Y.S.2d 779]

significant gaps that preclude meaningful review ( see Matter of Horne v. Fischer, 98 A.D.3d 788, 789, 949 N.Y.S.2d 814 [2012];Matter of Wallace v. Prack, 93 A.D.3d 1056, 1057, 940 N.Y.S.2d 695 [2012] ) and, upon listening to the tape recording of the disciplinary hearing, we are unpersuaded by petitioner's contention that the tape was defective or incomplete. We have considered petitioner's remaining arguments...