Salmon v. Coughlin

159 A.D.2d 881, 553 N.Y.S.2d 223, 1990 N.Y. App. Div. LEXIS 3090

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1990
• Status: Published

Opinion

Casey, J.

Petitioner, a prisoner at Eastern Correctional Facility in Ulster County, was charged in a misbehavior report with violating an institutional rule which prohibits inmates from possession of controlled substances. The report was based on a random frisk conducted at the yard gate by Correction Officer W. Young, who authored the report. The frisk of petitioner revealed "what was believed to be (7) seven rolled marijuana cigarettes” in petitioner’s right sock. Correction Officer L. Distel performed two NIK

* tests, both of which identified the substance in the cigarettes as marihuana. Based on the misbehavior report, the statement of Correction Sergeant B. Binkley corroborating that report and Distel’s test report, petitioner was found guilty and sentenced to 120 days in special housing unit with loss of privileges. On administrative appeal, the determination was modified to 90 days in special housing unit and loss of privileges.

The sequential positive results of the two tests, when coupled with Young’s personal observation and the reports of the officers also identifying the substance as marihuana, provided substantial evidence on which to base the determination (see, Matter of Darnell v Kuhlmann, 145 AD2d 852). Accordingly, the determination appealed from should be confirmed.

Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Casey, Weiss, Levine and Harvey, JJ., concur.

A color-reactive chemical test which employs the Duquenois-Levine Regeant System (7 NYCRR 1010.5 [d] [Test E]).