Johnson v. Selsky

14 A.D.3d 755, 786 N.Y.S.2d 856, 2005 N.Y. App. Div. LEXIS 35

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 2005
• 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 was charged with violating the prison disciplinary rule prohibiting inmates from using controlled substances after a sample of his urine twice tested positive for the presence of cannabinoids. He was found guilty of this charge following a tier III disciplinary hearing and the determination was upheld on administrative appeal. This CPLR article 78 proceeding ensued.

Initially, petitioner challenges the evidence upon which the determination is based, specifically attacking the chain of custody of the specimen that yielded the positive test results. Based upon our review of the record, however, we find that appropriate testing procedures were followed and the chain of custody was properly established so as to ensure the reliability of the positive test results (see Matter of Davis v Goord, 8 AD3d 854, 855 [2004]; Matter of Dunn v Selsky, 7 AD3d 938, 938-939 [2004]). Those results, together with the misbehavior report and the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt (see Matter of Odome v Goord, 8 AD3d 921, 922 [2004]; Matter of Williams v New York State Dept. of Correction, 8 AD3d 920, 921 [2004]). Furthermore, we do not find that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of McCorkle v Bennett, 8 AD3d 918, 919 [2004]).

Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.