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In the Matter of GEORGE LUNNEY, Petitioner, v. DONALD SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of controlled substances after a sample of his urine twice tested positive for the presence of opiates. Inasmuch as the misbehavior report and the positive test results, together with the testimony at the hearing, provide substantial evidence of petitioner's guilt, the determination will not be disturbed ( see Matter of Hayes v Goord, 26 AD3d 546; Matter of Molina v Selsky, 21 AD3d 1238, 1238-1239). The testimony of the facility nurse and the correction officer who performed the test refuted petitioner's claim that certain medications he had received caused a false positive test result, thus creating a credibility issue for the Hearing Officer to resolve ( see Matter of Figueroa v Goord, 15 AD3d 705, 706; Matter of Vourderis v Selsky, 4 AD3d 667, 668).

Petitioner's remaining contentions, including his claim of ineffective employee assistance, have been reviewed and determined to be without merit.

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

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LUNNEY v. SELSKY
(Nov 9, 2006)