Opinion
06-23-2016
In the Matter of Kevin BAILEY, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
Kevin Bailey, Wallkill, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Kevin Bailey, Wallkill, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Before: LAHTINEN, J.P., McCARTHY, ROSE, CLARK and MULVEY, JJ.
Opinion
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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Pursuant to the procedures governing family reunion visits, petitioner provided a urine sample, known as a “B” sample, just prior to the visit. He thereafter provided another sample, known as a “C” sample, immediately following the visit. A correction officer performed urinalysis tests on both samples. The results of the tests on the “B” sample were negative, but the “C” sample twice tested positive for the presence of K2, synthetic marihuana. The testing officer concluded that petitioner had used K2 during the visit and issued a misbehavior report charging him with using an intoxicant and violating family reunion program procedures (see 7 NYCRR 220.8 ). Following a tier III disciplinary hearing, petitioner was found guilty as charged. The determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, drug test results and related documentation, together with the hearing testimony, provide substantial evidence to support the finding of guilt (see Matter of Jenkins v. Annucci, 136 A.D.3d 1093, 1093, 23 N.Y.S.3d 917 [2016] ; Matter of Mannino v. Fischer, 102 A.D.3d 1032, 1032, 958 N.Y.S.2d 237 [2013], lv. denied 21 N.Y.3d 855, 2013 WL 1876506 [2013] ). To the extent that petitioner argues to the contrary, we find that he was properly charged with violating disciplinary rule 113.13 (see Matter of Roman v. Prack, 133 A.D.3d 959, 960, 18 N.Y.S.3d 568 [2015] ; Matter of Ralands v. Prack, 131 A.D.3d 1334, 1335, 16 N.Y.S.3d 788 [2015] ). Further, the record reflects that a proper chain of custody for the samples was established and that proper testing procedures were followed (see Matter of Roman v. Prack, 133 A.D.3d at 960, 18 N.Y.S.3d 568 [2015] ; Matter of Cagle v. Fischer, 108 A.D.3d 913, 913, 968 N.Y.S.2d 415 [2013] ). Moreover, petitioner was not denied the right to call certain witnesses, inasmuch as he failed to demonstrate that the requested witnesses could have provided relevant testimony (see Matter of Miller v. Annucci, 131 A.D.3d 1304, 1305, 16 N.Y.S.3d 348 [2015] ; Matter of Cato v. Annucci, 127 A.D.3d 1481, 1481–1482, 5 N.Y.S.3d 916 [2015] ). Finally, although there are some inaudible gaps in the hearing transcript, they are not so significant as to prevent meaningful review (see Matter of Rizzuto v. Eastman, 134 A.D.3d 1308, 1308, 20 N.Y.S.3d 916 [2015] ; Matter of Sanders v. Annucci, 128 A.D.3d 1156, 1157, 7 N.Y.S.3d 733 [2015], appeal dismissed 26 N.Y.3d 964, 18 N.Y.S.3d 600, 40 N.E.3d 578 [2015] ). Petitioner's remaining claims have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.