State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 22, 2016 522604
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In the Matter of EON SHEPHERD,
Petitioner,
v MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
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Calendar Date: August 8, 2016
Before: Peters, P.J., McCarthy, Egan Jr., Rose and Aarons, JJ.
__________
Eon Shepherd, Romulus, 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 respondent 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 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 and 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
proceeding ensued.
-2- 522604
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 the Hearing Officer
to resolve (see Matter of Belle v Prack, 140 AD3d 1509, 1510
[2016]). We also conclude that the documentary evidence and
hearing testimony establish that petitioner's urine sample was
properly handled and that the testing procedures — which were
capable of testing for synthetic marihuana or K2 – were properly
followed and that the test results were therefore reliable (see 7
NYCRR 1020.5 [a] [1]; Matter of Roman v Prack, 133 AD3d 959, 960
[2015]; Matter of Figueroa v Goord, 15 AD3d 705, 706 [2005]).
Turning to petitioner's procedural claims, the record
establishes that petitioner was provided with all of the required
testing documentation — including the required urinalysis
procedure and test forms — in addition to pertinent logs and
calibration reports and was afforded an opportunity to review a
departmental memorandum regarding the testing of K2 and the
testing officer's training certificate (see 7 NYCRR 1020.4 [f]
[1] [iv]; 1020.5 [a]; Matter of Smith v Prack, 138 AD3d 1286,
1287 [2016]; Matter of Paddyfote v Fischer, 118 AD3d 1240, 1241
[2014]). We further reject petitioner's contention that he was
denied adequate employee assistance given that the Hearing
Officer remedied any deficiencies, and petitioner has not
demonstrated that he was prejudiced (see Matter of McMaster v
Annucci, 138 AD3d 1289, 1290 [2016], lv denied ___ NY3d ___
[Sept. 13, 2016]). Nor has petitioner demonstrated that he was
denied access to his attorney, as the Hearing Officer adjourned
the hearing to afford petitioner time to speak with his attorney
(compare Matter of Jeckel v New York State Dept. of Corr., 111
AD3d 1180, 1181 [2013]). We have reviewed petitioner's remaining
contentions, including his claim that the Hearing Officer
exhibited improper bias, and find them to be lacking in merit.
Peters, P.J., McCarthy, Egan Jr., Rose and Aarons, JJ.,
concur.
-3- 522604
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court