Opinion
12-08-2016
In the Matter of Phillip COTTERELL, Petitioner, v. J. TAYLOR–STEWART, as Deputy Superintendent of Program Services, et al., Respondents.
Phillip Cotterell, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.
Phillip Cotterell, Pine City, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondents.
Before: PETERS, P.J., McCARTHY, ROSE, CLARK and MULVEY, JJ.
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.
Following a family reunion visit with his wife, petitioner provided a urine specimen that twice tested positive for the presence of THC, an active ingredient of marihuana. As a result, petitioner was charged in a misbehavior report with using a controlled substance and violating family reunion program procedures. He was found guilty of the charges 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 Williams v. Annucci, 141 A.D.3d 1062, 1062, 36 N.Y.S.3d 536 [2016] ; Matter of Jones v. Fischer, 138 A.D.3d 1294, 1295, 31 N.Y.S.3d 228 [2016] ). Contrary to petitioner's claim, we find no deficiencies in the chain of custody given that the correction officer who obtained the specimen that petitioner provided after the visit stated that it was either in his possession or secured in a locked room prior to testing, and the handling of the specimen was otherwise set forth on the request for urinalysis form (see Matter of Martinez v. Annucci, 134 A.D.3d 1380, 1381, 21 N.Y.S.3d 771 [2015] ; Matter of Paddyfote v. Fischer, 118 A.D.3d 1240, 1241, 987 N.Y.S.2d 719 [2014] ). Inasmuch as the urine specimen that petitioner provided immediately prior to the visit tested negative for THC while the specimen he provided after the visit twice tested positive, this established that he ingested drugs during the visit and violated family reunion program procedures (see 7 NYCRR 220.8 [c]; see also 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] ). Furthermore, the Hearing Officer's denial of certain witnesses whose testimony would have been irrelevant does not show that the Hearing Officer was biased, nor is there anything in the record to establish that the determination flowed from any such alleged bias (see Matter of Mullamphy v. Fischer, 112 A.D.3d 1177, 1177, 976 N.Y.S.2d 628 [2013] ; Matter of White v. Fischer, 108 A.D.3d 891, 892, 968 N.Y.S.2d 737 [2013], lv. denied 22 N.Y.3d 853, 2013 WL 5658361 [2013] ). We have considered petitioner's remaining contentions, to the extent that they are properly before us, and find them to be unavailing.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.