In the Matter of Umar Rashid, Petitioner, v. Philip Coombe, Jr., as Acting Commissioner of New York State Department of Correctional Services, Respondent

In the Matter of Umar Rashid, Petitioner, v Philip Coombe, Jr., as Acting Commissioner of New York State Department of Correctional Services, Respondent. [661 NYS2d 816] [MAJORITY] Determination unanimously confirmed without costs and petition dismissed. Memorandum: The determination that petitioner violated inmate rule 113.12 (7 NYCRR 270.2 [B] [14] [in]) by possessing an opiate is supported by substantial evidence (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). Although the SYVA test manual indicates that an ingredient in the cough syrup medication taken by petitioner "could” cause a false positive result, hearsay evidence provided by facility medical personnel and the toxicology laboratory utilized by respondent establish that petitioner did not ingest enough of the cough syrup to cause a false positive result. Further, the record does not support the contention that the Hearing Officer improperly considered petitioner’s previous drug violations as evidence of guilt of the instant oifense (cf., Matter of Lonski v Coughlin, 126 AD2d 981, 982). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Denman, P. J., Green, Doerr, Balio and Fallon, JJ.