State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 26, 2017 522834 

________________________________

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