Matter of Shepherd v. Annucci, 142 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2016). · Go Syfert
Matter of Shepherd v. Annucci, 142 A.D.3d 1244 (N.Y. App. Div. 3d Dep't 2016). Cases Citing This Book View Copy Cite
7 citation events (7 in the last 25 years) across 2 distinct courts.
Cited for
At page 1244 Reviewing disciplinary finding based on drug test evidence5 citing casesProceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of…opening of page *1244 (no citing court says what it cites this page for) · 4 listed here
  • Matter of Wallace v. Annucci, 153 A.D.3d 1499 (N.Y. App. Div. 3d Dep't 2017).published
    Petitioner’s claim that he did not possess drugs presented a credibility issue for the Hearing Officer to resolve (see Matter of Shepherd v Annucci, 142 AD3d 1244, 1244 [2016], lv denied 28 NY3d 914 [2017]; Matter of Belle v Prack, 140 AD3…
  • Gainey v. Annucci, 148 A.D.3d 1398 (N.Y. App. Div. 3d Dep't 2017).published 2 cites
    Furthermore, the reliability of the test results was established through documentary evidence and hearing testimony as to the chain of custody and the adherence to proper testing procedures (see Matter of Shepherd v Annucci, 142 AD3d 1244,…
  • Matter of Vargas v. Annucci, 147 A.D.3d 1124 (N.Y. App. Div. 3d Dep't 2017).published
    Petitioner’s contention that he was suffering from dehydration, an assertion that the nurse testified was inconsistent with his pinpoint pupils, created a credibility issue for the Hearing Officer to resolve (see Matter of Shepherd v Annuc…
  • Matter of Streeter v. Annucci, 145 A.D.3d 1300 (N.Y. App. Div. 3d Dep't 2016).published
    We have previously recognized that rule 113.13, which prohibits the use of “intoxicantes]” (7 NYCRR 270.2 [B] [14] [iii]), applies to synthetic marihuana (see Matter of Ralands v Prack, 131 AD3d 1334, 1335 [2015]; see also Matter of Shephe…
At page 1245 1287 [2016]; Matter of Paddyfote v Fischer, 118 AD3d 1240, 1241 [2014]). We further reject petitioner’s contention that he was denied adequate employee…1 citing caseopening of page *1245 (no citing court says what it cites this page for)
  • Matter of Grate v. Annucci, 152 A.D.3d 1127 (N.Y. App. Div. 3d Dep't 2017).published
    This testimony and the related documents provided to petitioner established that appropriate testing procedures *1128 were followed and, thus, that the test results were reliable (see 7 NYCRR 1020.5 [a]; Matter of Shepherd v Annucci, 142 A…
Retrieving the full opinion text from the archive…
In the Matter of Eon Shepherd, Petitioner,
v.
Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent
522604.
Appellate Division of the Supreme Court of the State of New York.
Sep 22, 2016.
Published opinion
142 A.D.3d 1244
Peters, McCarthy, Egan, Rose, Aarons, Adjudged.
Cited by 7 opinions  |  Published

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.

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,[*1245] 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 28 NY3d 902 [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. Adjudged that the determination is confirmed, without costs, and petition dismissed.