Kae v. Selsky

Appellate Division of the Supreme Court of New York

Kae v. Selsky

279 A.D.2d 682, 719 N.Y.S.2d 310, 2001 N.Y. App. Div. LEXIS 40

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 4, 2001

StatusPublished

Cited by7 cases

This text of 279 A.D.2d 682 (Kae v. Selsky) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kae v. Selsky, 279 A.D.2d 682, 719 N.Y.S.2d 310, 2001 N.Y. App. Div. LEXIS 40 (N.Y. Ct. App. 2001).

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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 found guilty of 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. To the extent that petitioner raises a substantial evidence issue herein, we find that the misbehavior report, together with the positive results of the urinalysis tests and the testimony of the correction officer who obtained the sample and performed the testing, constitute substantial evidence to support the charge of drug use (see, Matter of Myers v Goord, 274 AD2d 801). Furthermore, the chain of custody was sufficiently documented and a proper foundation was laid for reliance on the positive test results (see, 7 NYCRR 1020.4 [e]; Matter of Terry v Goord, 272 AD2d 701).

Notwithstanding petitioner’s assertion, the hearing was commenced in accordance with 7 NYCRR 254.6 (a) as it began on October 26, 1999 at 6:31 p.m., more than 24 hours after petitioner’s initial meeting with his employee assistant on October 25, 1999 at 12:55 p.m. (see, Matter of Hein v Goord, 249 AD2d 661). In any event, the hearing was adjourned in order to afford petitioner an opportunity to prepare his defense (see, id.). Finally, we are satisfied that petitioner received adequate employee assistance inasmuch as he was provided with all the available and relevant documents to which he was entitled (see, 7 NYCRR 1020.5; Matter of Wood v Selsky, 240 AD2d 876).

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

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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 found guilty of 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. To the extent that petitioner raises a substantial evidence issue herein, we find that the misbehavior report, together with the positive results of the urinalysis tests and the testimony of the correction officer who obtained the sample and performed the testing, constitute substantial evidence to support the charge of drug use (see, Matter of Myers v Goord, 274 AD2d 801). Furthermore, the chain of custody was sufficiently documented and a proper foundation was laid for reliance on the positive test results (see, 7 NYCRR 1020.4 [e]; Matter of Terry v Goord, 272 AD2d 701).

Notwithstanding petitioner’s assertion, the hearing was commenced in accordance with 7 NYCRR 254.6 (a) as it began on October 26, 1999 at 6:31 p.m., more than 24 hours after petitioner’s initial meeting with his employee assistant on October 25, 1999 at 12:55 p.m. (see, Matter of Hein v Goord, 249 AD2d 661). In any event, the hearing was adjourned in order to afford petitioner an opportunity to prepare his defense (see, id.). Finally, we are satisfied that petitioner received adequate employee assistance inasmuch as he was provided with all the available and relevant documents to which he was entitled (see, 7 NYCRR 1020.5; Matter of Wood v Selsky, 240 AD2d 876).

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

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Bluebook (online)

279 A.D.2d 682, 719 N.Y.S.2d 310, 2001 N.Y. App. Div. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kae-v-selsky-nyappdiv-2001.

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