Opinion
July 31, 1986
Appeal from the Supreme Court, Clinton County.
Evidence adduced at a Superintendent's proceeding disclosed that, on March 12, 1985 at Clinton Correctional Facility, a correction officer smelled marihuana smoke in a showroom area where petitioner was present. His glossy red eyes, garbled speech and vagueness of manner led the officer to suspect that petitioner had been using marihuana in violation of a disciplinary rule prescribed by the Department of Correctional Services (DOCS). A sample of his urine was requested and taken three days later; twice it tested positive for cannabinoid. In the half-hour interval between performance of those tests, a misbehavior report was prepared charging petitioner with the illicit use of drugs. The charge was sustained and a penalty of 90 days' keeplock, loss of good time and other privileges was imposed. After exhausting his administrative appeals, petitioner commenced the instant proceeding.
In arriving at his disposition, the hearing officer relied upon both the urinalysis test results and the correction officer's observations. However, the urinalysis results were improperly received in evidence for they were not obtained in accordance with DOCS own rule, which requires that "[i]f a positive result is obtained, the apparatus shall be recalibrated and a second test shall be performed on the same sample". It is uncontroverted that no such recalibration occurred in this case. That failure of compliance rendered the test results inadmissible (see, Matter of Martin v Coughlin, 90 A.D.2d 946; Matter of Johnson v Smith, 83 A.D.2d 721, 722; see also, Matter of Shipman v Coughlin, 98 A.D.2d 823, 824). We confirm, nevertheless, because the observations of the correction officer who initially suspected petitioner's drug usage are sufficient to sustain the determination.
Determination confirmed, and petition dismissed, without costs. Kane, Weiss, Mikoll and Yesawich, Jr., JJ., concur.
I agree with the majority that the urinalysis test results were improperly received into evidence. However, observations of the correction officer were in no way sufficient to sustain the determination. Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 N.Y.2d 176, 180; Matter of Burgos v Coughlin, 108 A.D.2d 194, 196, lv denied 66 N.Y.2d 603). The observations of the correction officer, while consistent with the use of marihuana by petitioner, do not, standing alone, support such a conclusion. Indeed, if such observations were sufficient, there would be no need for prison authorities to resort to urinalysis or any other reliable tests.