                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522269
________________________________

In the Matter of KENNETH SMITH,
                    Petitioner,
      v

DONALD VENETTOZZI, as Acting                MEMORANDUM AND JUDGMENT
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   Peters, P.J., McCarthy, Lynch, Mulvey and Aarons, JJ.

                             __________


     Kenneth Smith, Comstock, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was ordered to submit a urine specimen for
testing, and it twice tested positive for the presence of
cannabinoids. As a result, he was charged in a misbehavior
report with violating the disciplinary rule that prohibits the
use of controlled substances. Following a tier III disciplinary
hearing, he was found guilty of the charge and the determination
was affirmed upon administrative appeal. This CPLR article 78
proceeding ensued.
                              -2-                522269

      We confirm. The misbehavior report and testimony of its
author who performed the tests, as well as the positive test
results and related documents, provide substantial evidence
supporting the determination of guilt (see Matter of Benitez v
Annucci, 139 AD3d 1215, 1215 [2016]). A facility nurse who
reviewed petitioner's medical records testified that, contrary to
his claim, none of the medications that petitioner was taking at
the time of the test would have produced a positive test result,
creating a credibility question for the Hearing Officer to
resolve (see Matter of Coons v Fischer, 106 AD3d 1302, 1303
[2013]). Any error in the testing officer contacting facility
medical staff about petitioner's medications just before the
hearing, rather than immediately after the positive test results,
had no bearing on the outcome. As the nurse and testing officer
testified, petitioner's request to call the officer who collected
the specimen to testify about why facility medical staff were not
contacted earlier was properly denied as irrelevant (see Matter
of Jones v Fischer, 138 AD3d 1294, 1295 [2016]).

      Petitioner claims that the reason for the urinalysis test
was invalid and did not comply with 7 NYCRR 1020.4 (a). The
request for urinalysis form stated that the request was based
upon an "[o]ngoing investigation into drug activity inside [the]
facility," although petitioner was told that it was based upon
"suspicion," which was circled on the request form. However,
petitioner agreed at the hearing that the reason given qualified
it as a random drug test, which is permitted (see 7 NYCRR 1020.4
[a] [7]). Inasmuch as the Hearing Officer did not rely on
confidential information, the circumstances leading to the test
request were irrelevant (see Matter of Jackson v Annucci, 121
AD3d 1483, 1483 [2014]; Matter of Selah v LaValley, 117 AD3d
1261, 1261 [2014]; Matter of Land v Fischer, 100 AD3d 1170, 1170
[2012]). Further, petitioner's request to call the sergeant who
requested the test was properly denied as his testimony was
irrelevant (see Matter of Hyatt v Annucci, 141 AD3d 977, 978-979
[2016]). Petitioner's remaining claims, to the extent that they
are preserved for our review, have been reviewed and determined
to also lack merit.

      Peters, P.J., McCarthy, Lynch, Mulvey and Aarons, JJ.,
concur.
                              -3-                  522269

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
