
    In the Matter of James Turner, Petitioner, v Glenn S. Goord, as Commissioner of the Department of Correctional Services, Respondent.
    [713 NYS2d 246]
   —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 certain prison disciplinary rules.

Petitioner, a prison inmate participating in a temporary release program, challenges the determination finding him guilty of violating the prison disciplinary rules that prohibit inmates from using controlled substances and violating temporary release program rules after his urine specimen twice tested positive for cocaine. In defense of the charges, petitioner asserted that the Tylenol and Sudafed he had taken could have caused a false positive reading. The Hearing Officer summarily rejected petitioner’s defense, stating that the test results would not be affected by the medications and, therefore, found petitioner guilty.

Although respondent contends that petitioner’s bare allegation of a false positive test reading did not obligate respondent to present contrary evidence and that no finding as to the possibility of a false positive was required, the Hearing Officer nevertheless made a material finding of fact unsupported by the evidence. The record is void of any testimony from the correction officer who performed the urinalysis test or documentary evidence from the manufacturer of the testing apparatus substantiating this finding (compare, Matter of Martinez v New York State Dept. of Correctional Servs., 273 AD2d 663; Matter of Byas v Goord, 272 AD2d 800; Matter of Youngblood v Goord, 267 AD2d 640). Thus, the determination of guilt must be annulled and expunged from petitioner’s files (see, Matter of Hartje v Coughlin, 70 NY2d 866).

Peters, J. P., Graffeo, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is annulled, without costs, petition granted, and respondent is directed to expunge all references to this proceeding from petitioner’s files and to restore any good time taken from petitioner as a result thereof.  