Opinion
June 25, 1998
Based upon a correction officer's observation of petitioner's unusual behavior and the smell of marihuana in the area where petitioner was located, a urine sample was collected from petitioner ( see, 7 NYCRR 1020.4 [a] [1]). Petitioner was charged with, and ultimately found guilty of, violating the prison disciplinary rule which prohibits inmates from using a controlled substance after his urine twice tested positive for the presence of cocaine. Petitioner's claim that the misbehavior report was defective because it did not adequately detail the alleged incident of misbehavior as observed by the correction officer is misplaced. The charge of using a controlled substance was not imposed based upon the correction officer's observation of petitioner's suspicious conduct but rather on the positive results of the drug test ( see, Matter of Grochulski v. Kuhlmann, 176 A.D.2d 1111, 1113, lv denied 79 N.Y.2d 755). We also reject petitioners s contention that there was no authority to test his urine for anything other than marihuana ( see generally, Matter of Murphy v. Selsky, 239 A.D.2d 724). The misbehavior report, together with the two positive results of the urinalysis tests and the testimony of the correction officer who witnessed petitioner's unusual behavior, provided substantial evidence to support the determination of petitioner's guilt ( see, Matter of Foy v. Coughlin, 210 A.D.2d 723).
Mikoll, J. P., Mercure, Crew III, White and Graffeo, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.