Opinion
524576.
11-09-2017
In the Matter of Herman BLUNT, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Herman Blunt, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Herman Blunt, Napanoch, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. He was found guilty of the charge following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive urinalysis test results and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Lyons v. Annucci, 152 A.D.3D 1099, 1100, 56 N.Y.S.3d 477 [2017] ; Matter of Green v. Annucci, 148 A.D.3d 1443, 1444, 49 N.Y.S.3d 583 [2017], lv. denied 29 N.Y.3d 916, 2017 WL 3908091 [2017] ; Matter of Bouton v. Annucci, 145 A.D.3d 1219, 1220, 43 N.Y.S.3d 565 [2017] ). Contrary to petitioner's claim, the chain of custody of his urine sample was adequately established by the information contained on the request for urinalysis form and the testimony of the correction officer who conducted both tests of the sample (see Matter of Lyons v. Annucci, 152 A.D.3d at 1100, 56 N.Y.S.3d 477; Matter of Ball v. Annucci, 144 A.D.3d 1300, 1300, 40 N.Y.S.3d 300 [2016] ). Although the testing officer's signature did not appear on the bottom of the form containing the second test result, the officer testified that she conducted the test and that this omission was an inadvertent clerical error (see Matter of Williams v. Annucci, 141 A.D.3d 1062, 1063, 36 N.Y.S.3d 536 [2016] ; see also Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513 [2016] ). Moreover, to the extent that petitioner's maintains that his urine sample was tampered with and that the misbehavior report was written in retaliation for complaints that he filed against prison officials, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Green v. Annucci, 148 A.D.3d at 1444, 49 N.Y.S.3d 583; Matter of Marino v. New York State Dept. of Correctional Servs., 41 A.D.3d 1004, 1005, 838 N.Y.S.2d 689 [2007], appeal dismissed, lv. denied 9 N.Y.3d 940, 844 N.Y.S.2d 781, 876 N.E.2d 509 [2007] ). Furthermore, upon reviewing the record, we do not find that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Green v. Annucci, 148 A.D.3d at 1444, 49 N.Y.S.3d 583; Matter of Bouton v. Annucci, 145 A.D.3d at 1221, 43 N.Y.S.3d 565). We have considered petitioner's many remaining contentions and find that they have either not been preserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., EGAN JR., DEVINE, MULVEY and RUMSEY, JJ., concur.