Opinion
March 4, 1993
Appeal from the Supreme Court, Albany County.
Petitioner was found guilty after a Superintendent's hearing of violating disciplinary rule 113.12 prohibiting the use or possession of a controlled substance based upon statements in a misbehavior report, testimony at the hearing and drug tests which were positive for both opiates and cocaine. Petitioner contends that the determination is not supported by substantial evidence because his consumption of poppy seeds — assertedly contained in a frozen pizza — may have caused a false positive in the drug test for opiates and because the procedures employed to obtain the urine specimens used in the drug tests did not assure a proper chain of custody. Initially, given that the determination of guilt of the single charge is supported by the positive results of the test for cocaine, the fact that poppy seeds may have caused a false positive in the opiate test does not require annulment of the determination (see, Matter of Roman Catholic Diocese v. New York State Dept. of Health, 109 A.D.2d 140, 148 [Levine, J., dissenting], revd 66 N.Y.2d 948). Further, the correction officer who collected the urine sample testified that it was kept in a secure area as required by applicable regulations. Nor do we find that the record reveals bias on the part of the Hearing Officer that would require annulment (see, Matter of Nieves v. Coughlin, 157 A.D.2d 943, 944).
Finally, at the hearing petitioner stated that he had taken medication which might cause a false positive in the drug tests. The Hearing Officer established that the only medication for which petitioner was able to produce a prescription was not listed as one that could cause a false positive. As to the other possible medications, the Hearing Officer held that she would need petitioner's consent to examine his records to determine what drugs were involved. Petitioner never gave such consent and did not protest the Hearing Officer's determination that such consent was required. By failing to object at a time when any error could have been corrected, petitioner has waived any objection to this procedure (see, Matter of Finn v. Leonardo, 160 A.D.2d 1074; Matter of Geddes v. Wilmot, 111 A.D.2d 474, appeal dismissed 66 N.Y.2d 914, lv denied 66 N.Y.2d 603).
Weiss, P.J., Yesawich Jr., Levine, Crew III and Mahoney, JJ., concur. Adjudged that the determination confirmed, without costs, and petition dismissed.