Pollard v. Duncan

274 A.D.2d 720, 711 N.Y.S.2d 794, 2000 N.Y. App. Div. LEXIS 7815

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 2000
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington 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 two EMIT tests performed on petitioner’s urine sample yielded positive results for the presence of cannabinoids. In our view, the misbehavior report, the positive results of the uranalysis tests and the hearing testimony constitute substantial evidence supporting the charge of drug use (see, Matter of Kussius v Walker, 247 AD2d 911, 912). Contrary to petitioner’s contention, the chain of custody was sufficiently documented and a proper foundation was laid for the reliance on the positive test results (see, Matter of Garcia v Goord, 272 AD2d 694). Although petitioner claimed that he was served an incomplete request for urinalysis form, the Hearing Officer was within his authority in crediting the testimony of a correction officer to the effect that appropriate procedures were followed and the incomplete copy submitted by petitioner at the hearing must have been altered after it was served (see, Matter of Turner v Newton, 272 AD2d 688).

Finally, we have examined petitioner’s remaining contentions, including his claim that the Hearing Officer was biased, and, to the extent that they were preserved for appellate review, find them to be unpersuasive.

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