In the Matter of James Rizzo, Petitioner, v. Glenn S. Goord, as Commissioner of Correctional Services, Respondent

In the Matter of James Rizzo, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent. [753 NYS2d 392] [MAJORITY] —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 which found petitioner guilty of violating a prison disciplinary rule. Petitioner was found guilty of violating the prison disciplinary rule prohibiting the unauthorized use of controlled substances after his urine twice tested positive for the presence of marihuana. Substantial evidence of petitioner’s guilt was presented in the form of the misbehavior report, the testimony of the correction officer who prepared the report after conducting the urinalysis tests, and the positive test results with supporting documentation (see Matter of Jude v Goord, 277 AD2d 535; Matter of Mitchell v Goord, 272 AD2d 696). Petitioner’s contention that the prison disciplinary rule does not prohibit the use of marihuana because it is not a controlled substance but an “intoxicant” is patently meritless. Marihuana is defined by statute as a “controlled substance” (see Public Health Law § 3306 [schedule I (d) (13)]). The remaining assertions of error made by petitioner have been examined and found to be without merit. Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.