Opinion
2012-09-13
In the Matter of Tyrone DAVIS, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Tyrone Davis, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Tyrone Davis, Comstock, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: MERCURE, J.P., ROSE, MALONE JR., KAVANAGH and GARRY, 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 respondent which found petitioner guilty of violating a prison disciplinary rule.
After a sample of his urine twice tested positive for the presence of cannabinoids, petitioner was charged in a misbehavior report with using a controlled substance. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive urinalysis test results and related documentation, along with the testimony of the correction officer who tested the sample, provide substantial evidence supporting the determination of guilt ( see Matter of Curry v. Fischer, 93 A.D.3d 984, 984, 939 N.Y.S.2d 732 [2012];Matter of Daniel v. Fischer, 86 A.D.3d 892, 892, 927 N.Y.S.2d 480 [2011] ). The discrepancy in the date the sample was collected as indicated on the misbehavior report and the request for urinalysis form was adequately explained by the testing officer as a clerical error ( see Matter of Geraci v. Fischer, 63 A.D.3d 1467, 1468, 880 N.Y.S.2d 865 [2009];Matter of Collins v. Goord, 40 A.D.3d 1329, 1330, 836 N.Y.S.2d 733 [2007] ). Moreover, the chain of custody of the sample was properly established by the information contained on the request for urinalysis form, as well as the testimony of the testing officer who stated that she had custody of the sample from the time it was removed from the freezer until it was destroyed ( see7 NYCRR 1020.4[e][1]; Matter of Moss v. Prack, 87 A.D.3d 1255, 1256, 930 N.Y.S.2d 311 [2011];Matter of Valdez v. Fischer, 85 A.D.3d 1529, 925 N.Y.S.2d 919 [2011],lv. denied17 N.Y.3d 716, 2011 WL 5526447 [2011] ). Petitioner's remaining claims have been considered and rejected.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.