Opinion
May 24, 2001.
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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Michael Castaldo, Collins, petitioner in person.
Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondents.
Before: Mercure, J.P., Spain, Mugglin, Rose and Lahtinen, JJ.
MEMORANDUM AND JUDGMENT
Petitioner was found guilty of violating the prison disciplinary rules prohibiting the use of a controlled substance, conspiring to introduce a controlled substance into the facility and violating the family reunion program rules after a sample of his urine obtained during a family reunion program visit with his wife twice tested positive for the presence of cannabinoids. Based on our review of the record, we conclude that there is insufficient evidence to support the charge of conspiring to introduce a controlled substance into the facility and, accordingly, the determination on this charge must be annulled. Since petitioner has apparently served his administrative penalty, the appropriate remedy on this annulled charge is expungement from petitioner's institutional record (see, Matter of Delgado v. Hurlburt, 279 A.D.2d 734, 735 n 1, 718 N.Y.S.2d 473, 474 n 1).
Turning to the remaining charges, we find that the misbehavior report, together with the positive results of the urinalysis tests and the testimony adduced at the hearing, constitute substantial evidence to support the determination of guilt (see, Matter of Smart v. Goord, 266 A.D.2d 606; Matter of Sanatana v. Goord, 239 A.D.2d 695). Likewise, we find that the evidence sufficiently demonstrated that petitioner's urine tests were performed in accordance with the applicable procedures and the chain of custody was adequately established (see, 7 NYCRR 1020.4 [e]; Matter of Terry v. Goord, 272 A.D.2d 701).
Mercure, J.P., Mugglin, Rose and Lahtinen, JJ., concur.
ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of conspiring to introduce a controlled substance into the facility; petition granted to that extent and respondents are directed to expunge all references thereto from petitioner's institutional record; and, as so modified, confirmed.