Matter of Collins v. Annucci

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 26, 2017 522834
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In the Matter of JUNIOR
COLLINS,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________

Calendar Date: November 29, 2016

Before: Peters, P.J., Garry, Egan Jr., Mulvey and Aarons, JJ.

__________

Junior Collins, Attica, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs 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.

While walking past petitioner's cell, a correction officer
observed petitioner attempting to roll a marihuana cigarette,
prompting petitioner to flush the suspected cigarette down the
toilet located in his cell. A subsequent cell frisk by that
correction officer revealed a small quantity of a green leafy
substance that later tested positive for marihuana, and
petitioner was charged in a misbehavior report with, as relevant
here, drug possession. Following a tier III disciplinary
hearing, petitioner was found guilty of that charge, and that
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determination was upheld upon administrative appeal. Petitioner
then commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, positive NIK test
results and related documentation, together with the hearing
testimony, provide substantial evidence supporting the
determination finding petitioner guilty of drug possession (see
Matter of Kaid v Prack, 140 AD3d 1511, 1511 [2016]; Matter of
Fero v Prack, 108 AD3d 1004, 1005 [2013]). The hearing testimony
of the correction officer who recovered and tested the
contraband, as well as the testimony of the representative from
the manufacturer of the drug test, reflect that the results
indicated a positive test for marihuana and not a false positive.
Contrary to petitioner's contention, a second test to confirm the
positive test result was not required (see Matter of Fields v
Prack, 120 AD3d 1510, 1511 [2014]; Matter of Fero v Prack, 108
AD3d at 1005).

Turning to petitioner's procedural arguments, we reject his
contention that production of the contraband was required at the
hearing where, as here, the author of the misbehavior report
described the green, leafy substance that he confiscated from the
inmate's cell and where the record contains photographs of the
contraband in addition to the positive test results confirming
that the substance was marihuana (see Matter of Neri v Coughlin,
140 AD2d 764, 765 [1988]; Matter of Jones v Coughlin, 125 AD2d
883, 883 [1986]; cf. Matter of Mallen v Hearing Officer, Great
Meadow Correctional Facility, 304 AD2d 879, 879 [2003]).
Finally, upon reviewing the record, we find no indication that
the Hearing Officer exhibited bias or that the determination
flowed from any alleged bias (see Matter of Bekka v Annucci, 137
AD3d 1446, 1447 [2016]). We have considered petitioner's
remaining contentions and find that they are lacking in merit.

Peters, P.J., Garry, Egan Jr., Mulvey and Aarons, JJ.,
concur.
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ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.

ENTER:

Robert D. Mayberger
Clerk of the Court