Baez v. Sabourin

283 A.D.2d 749, 724 N.Y.S.2d 368, 2001 N.Y. App. Div. LEXIS 4855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2001
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule prohibiting the unauthorized use of a controlled substance after his urine twice tested positive for the presence of cannabinoids. Contrary to petitioner’s assertion, the chain of custody was sufficiently documented (see, 7 NYCRR 1020.4 [e]; Matter of Kae v Selsky, 279 AD2d 682). Furthermore, the testimony of the correction officer who performed the urinalysis tests and the documentary evidence in the record establish that the proper testing procedures were followed (see, Matter of Morales v Selsky, 281 AD2d 658). Petitioner’s claim that the tests resulted in a false positive due to second-hand smoke inhalation was refuted by the testimony of the SYVA representative.

Finally, we conclude that the misbehavior report and two positive test results, together with the testimony received at the hearing, provide substantial evidentiary support for the determination of guilt (see, Matter of Jackson v Portuondo, 281 AD2d 740). Petitioner’s remaining contentions have been reviewed and found to be without merit.

Mercure, J. P., Crew III, Peters, Spain and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.