Spulka v. Murphy

276 A.D.2d 986, 715 N.Y.S.2d 916, 2000 N.Y. App. Div. LEXIS 10821

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 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 that prohibits possession of narcotics after two packets of a substance concealed inside his underwear tested positive for heroin. The misbehavior report, the testimony of its author, the positive results of a drug test performed on the substance and the testimony of the correction officer who conducted the test provide substantial evidence of petitioner’s guilt (see, Matter of Burse v Goord, 274 AD2d 678, 679; Matter of Archie v Great Meadow Correctional Facility, 243 AD2d 808). The record reveals that proper testing procedures were adhered to and that the chain of custody was sufficiently established (see, 7 NYCRR 1010.4; see also, Matter of Harris v Goord, 268 AD2d 933, 934; Matter of Juzwa v Goord, 264 AD2d 920, 921). Contrary to petitioner’s contention, the requirement that positive test results be confirmed by a second test applies only to the testing of urine specimens and not when the testing procedures are performed directly on the suspected substance (see, 7 NYCRR 1020.4 [e] [1] [iv]; 1010.4).

We have reviewed petitioner’s remaining contentions, including his claim of Hearing Officer bias, and conclude that they are either unpreserved for our review or lacking in merit.

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