Opinion
94755.
Decided and Entered: April 29, 2004.
Appeals (1) from a judgment of the Supreme Court (Bradley, J.), entered June 2, 2003 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule, and (2) from an order of said court, entered September 18, 2003 in Ulster County, which denied petitioner's motion for reargument.
Nathaniel Jackson, Wallkill, appellant pro se.
Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondents.
Before: Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
Petitioner was charged with violating the prison disciplinary rule prohibiting inmates from using controlled substances after a sample of his urine tested positive for the presence of cannabinoids. He was found guilty of that charge following a tier III disciplinary hearing. After that determination was upheld on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it. Supreme Court rejected petitioner's procedural claims and dismissed the petition. The court subsequently denied his motion for reargument. These appeals ensued.
Inasmuch as no appeal lies from the denial of a reargument motion, petitioner's appeal from that order must be dismissed (see Matter of Suarez v. Filion, 281 A.D.2d 743 [2001]; Mater of McKee v. Coughlin, 142 A.D.2d 798 [1988]).
Initially, we note that petitioner's challenge to the sufficiency of the chain of custody of the urinalysis test results raises a question of substantial evidence (see e.g. Matter of Zippo v. Goord, 2 A.D.3d 1006; Matter of Borges v. McGinnis, 307 A.D.2d 489, 489, lv denied 100 N.Y.2d 514). Although Supreme Court did not transfer the proceeding to this Court, this was not error inasmuch as the court noted that petitioner specifically indicated in a January 17, 2003 letter that he was waiving any substantial evidence questions raised in the petition. Nevertheless, were we to consider this claim, we would find it to be without merit. The documentary evidence indicates that petitioner gave a urine specimen at 6:13 P.M. on September 28, 2002 and that it was tested twice that same day by the same testing officer, once at 8:46 P.M. and a second time at 9:07 P.M. Although the testing officer stated that he could not recall if he removed the specimen from the freezer, there is no indication on the urinalysis testing forms that the specimen was ever placed in the freezer as it was tested within one day of the time it was collected (see 7 NYCRR 1020.4 [e] [1] [ii]). Therefore, we find that the chain of custody was adequately established (see Matter of Kae v. Selsky, 279 A.D.2d 682; Matter of Laureano v. Senkowski, 277 A.D.2d 613, 613-614).
Likewise, petitioner's procedural arguments are unpersuasive. There is no provision in the law or in the pertinent regulations giving an inmate the right to submit the results of polygraph tests or outside DNA laboratory tests in a prison disciplinary hearing. To the extent that the proposed testimony of petitioner's wife and the DNA specialist related to this evidence, such testimony was irrelevant and properly excluded (see Matter of Madison v. Selsky, 2 A.D.3d 934).
Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ORDERED that the appeal from the order is dismissed, without costs.