Dunn v. Selsky

7 A.D.3d 938, 776 N.Y.S.2d 526, 2004 N.Y. App. Div. LEXIS 7082

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 2004
• Status: Published

Opinion

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine twice tested positive for the presence of opiates. Contrary to petitioner’s assertion, the chain of custody and the testimony from the correction officer who performed the tests confirms that petitioner’s urine sample was properly secured and that all appropriate testing procedures were followed (see 7 NYCRR 1020.4 [e]; Matter of Victor v Goord, 309 AD2d 1026 [2003]), thereby providing a proper foundation for reliance on the positive test results (see 7 NYCRR 1020.5 [a] [1]; Matter of Carter v Senkowski, 278 AD2d 730 [2000]). Inasmuch as the misbehavior report, positive results of the urinalysis tests and testimony of the correction officer who conducted the tests provides substantial evidence to support the determination of guilt, it will not be disturbed (see Matter of Zippo v Goord, 2 AD3d 1006 [2003]; Matter of Adams v Goord, 2 AD3d 927 [2003]). Petitioner’s remaining contentions are either unpreserved or found to be without merit.

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.