Montalalou v. Coombe

Appellate Division of the Supreme Court of New York

Montalalou v. Coombe

242 A.D.2d 917, 662 N.Y.S.2d 335, 1997 N.Y. App. Div. LEXIS 10485

Appellate Division of the Supreme Court of the State of New York·Decided September 30, 1997·Published·Cited by 4 cases

Opinion

Judgment unanimously affirmed without costs. Memorandum: Petitioner appeals from a judgment dismissing his CPLR article 78 petition that challenged a determination finding him guilty of violating inmate rule 113.12 (7 NYCRR 270.2 [B] [14] [iii] [use of a controlled substance]). The determination was based on a misbehavior report that stated that a urine sample provided by petitioner tested positive for cannabinoids. That test complied with the EMIT procedures, and “can constitute substantial evidence to support [a] determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance” (Matter of Lahey v Kelly, 71 NY2d 135, 138). We reject the contention of petitioner that he is entitled to an independent test of the urine sample, conducted at his own expense (see, Matter of McPhee v Coombe, 233 AD2d 963, lv dismissed 89 NY2d 1026). (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.—CPLR art 78.) Present—Denman P. J., Hayes, Callahan, Doerr and Fallon, JJ.

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Judgment unanimously affirmed without costs. Memorandum: Petitioner appeals from a judgment dismissing his CPLR article 78 petition that challenged a determination finding him guilty of violating inmate rule 113.12 (7 NYCRR 270.2 [B] [14] [iii] [use of a controlled substance]). The determination was based on a misbehavior report that stated that a urine sample provided by petitioner tested positive for cannabinoids. That test complied with the EMIT procedures, and “can constitute substantial evidence to support [a] determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance” (Matter of Lahey v Kelly, 71 NY2d 135, 138). We reject the contention of petitioner that he is entitled to an independent test of the urine sample, conducted at his own expense (see, Matter of McPhee v Coombe, 233 AD2d 963, lv dismissed 89 NY2d 1026). (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.—CPLR art 78.) Present—Denman P. J., Hayes, Callahan, Doerr and Fallon, JJ.

Montalalou v. Coombe, 242 A.D.2d 917, 662 N.Y.S.2d 335, 1997 N.Y. App. Div. LEXIS 10485 (N.Y. Ct. App. 1997).

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Opinion

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