                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     521918
________________________________

In the Matter of WENDELL BELLE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
   et al.,
                    Respondents.
________________________________


Calendar Date:   May 3, 2016

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

                               __________


     Wendell Belle, Wallkill, petitioner pro se.

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

                               __________


      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 which found petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner was ordered to submit a urine specimen for
testing, and it twice tested positive for the presence of K2,
synthetic marihuana. As a result, he was charged in a
misbehavior report with violating the disciplinary rules that
prohibit the use of a controlled substance or an intoxicant.
Following a tier III disciplinary hearing, petitioner was found
guilty of using an intoxicant, and that determination was
affirmed upon administrative appeal. This CPLR article 78
                              -2-                521918

proceeding ensued.

      We confirm. The misbehavior report, positive drug test
results, related documentation and the hearing testimony provide
substantial evidence to support the finding that petitioner had
used synthetic marihuana, an intoxicant (see Matter of Martinez v
Annucci, 134 AD3d 1380, 1380 [2015]; Matter of Ralands v Prack,
131 AD3d 1334, 1335 [2015]). Petitioner's denial that he used an
intoxicant presented a credibility issue for resolution by the
Hearing Officer (see Matter of Rodriguez v Fischer, 120 AD3d 855,
855 [2014]). In addition, although the specimen collection date
was incorrect on the urinalysis test results form, the testing
officer explained that this was a clerical error that did not
affect or undermine the validity of the test results (see Matter
of Green v Annucci, 134 AD3d 1376, 1377 [2015]; Matter of Sheard
v Fischer, 107 AD3d 1261, 1261 [2013]). We also conclude that
the documentary evidence and hearing testimony establish that
petitioner's urine sample was properly handled and that the
testing procedures — including a check for cross-reactivity of
petitioner's medications capable of producing false positive test
results – were properly followed and that the test results were
therefore reliable (see Matter of Roman v Prack, 133 AD3d 959,
960 [2015]; Matter of Figueroa v Goord, 15 AD3d 705, 706 [2005]).
Finally, meaningful review is not precluded despite gaps in the
hearing transcript (see Matter of Jenkins v Annucci, 136 AD3d
1093, 1094 [2016]). We have reviewed petitioner's remaining
contentions, including his claim that the Hearing Officer
exhibited improper bias by denying his request to call as a
witness an employee from the urinalysis equipment manufacturer
(see Matter of Smith v Prack, 138 AD3d 1286, 1287 [2016]), and
find them to be without merit.

      McCarthy, J.P., Garry, Lynch, Mulvey and Aarons, JJ.,
concur.
                              -3-                  521918

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
