Opinion
2011-11-17
In the Matter of Kenneth NEIL, Petitioner,v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Kenneth Neil, Marcy, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
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.
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 THC. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. The
determination was later upheld on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the positive urinalysis test results and related documentation and the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt ( see Matter of Coleman v. Fischer, 81 A.D.3d 1018, 916 N.Y.S.2d 846 [2011]; Matter of Frye v. Commissioner of Correctional Servs., 69 A.D.3d 1074, 1074, 893 N.Y.S.2d 366 [2010] ). The chain of custody of the specimen was properly established by the testimony of the officer who collected it as well as the information contained on the request for urinalysis form ( see 7 NYCRR 1020.4[e][1][i]; Matter of Stanford v. Fischer, 77 A.D.3d 1013, 1013, 908 N.Y.S.2d 760 [2010]; Matter of Molina v. Selsky, 21 A.D.3d 1238, 1238, 801 N.Y.S.2d 425 [2005] ). In view of this, and given that the required testing documentation was provided to petitioner, a proper foundation was laid for the positive test results ( see 7 NYCRR 1020.5[a][1]; Matter of Karapetian v. Fischer, 65 A.D.3d 772, 772, 883 N.Y.S.2d 741 [2009]; Matter of Smith v. Dubray, 58 A.D.3d 968, 968, 871 N.Y.S.2d 758 [2009] ). Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur.