Comfort v. Irvin

197 A.D.2d 907, 602 N.Y.S.2d 264, 1993 N.Y. App. Div. LEXIS 9364

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1993
• Status: Published

Opinion

—Determination unanimously confirmed and petition dismissed. Memorandum: We reject petitioner’s challenges to the reliability of the EMIT test. The correction officers who collected and tested petitioner’s urine sample reasonably complied with the regulations governing urinalysis testing (see, 7 NYCRR part 1020; Matter of Melette v Berry, 181 AD2d 950, 951, lv dismissed 80 NY2d 1022; Matter of Hop Wah v Coughlin, 153 AD2d 999, lv denied 75 NY2d 705), and nothing in the record suggests that there was any defect in the chain of custody (see, Matter of McGill v Coughlin, 182 AD2d 1103). The Hearing Officer was entitled to rely on the result of the EMIT test in finding petitioner guilty of violating rule 113.12 (7 NYCRR 270.2 [B] [14] [in]), prohibiting use of a controlled substance (see, Matter of Lahey v Kelly, 71 NY2d 135).

Although petitioner’s hearing was not completed within 14 days following the writing of the misbehavior report (see, 7 NYCRR 251-5.1 [b]), extensions were properly authorized by the Commissioner’s designee (see, Matter of Graham v Henderson, 158 AD2d 911). Further, the 14-day time limit is directory only and there is no indication of any substantive prejudice to petitioner resulting from the delay (see, Matter of Lugo v Coughlin, 182 AD2d 920; Matter of Rosado v Kuhlmann, 164 AD2d 199, lv denied 77 NY2d 806). (Article 78 Proceeding Transferred by Order of Supreme Court, Erie County, Flaherty, J.) Present—Green, J. P., Balio, Fallon, Doerr and Boehm, JJ.