Opinion
524973
01-25-2018
In the Matter of Daryl SNYDER, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Daryl Snyder, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Daryl Snyder, Napanoch, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCarthy, J.P., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
At the conclusion of a visit with his wife under the Family
Reunion Program (hereinafter FRP), petitioner submitted a sample of his urine for testing. The sample was tested twice and returned positive results for the presence of THC, an active ingredient in marihuana. A urine sample that petitioner had given immediately preceding the FRP visit that was also tested returned a negative result for the presence of THC, leading correction officials to conclude that petitioner had ingested marihuana during the FRP visit. Consequently, he was charged in a misbehavior report with using a controlled substance and violating FRP guidelines. Petitioner was found guilty of the charges following a tier III disciplinary hearing, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive test results and related documentation, together with the testimony of the correction officers who handled and tested the samples, provide substantial evidence supporting the determination of guilt (see Matter of Streeter v. Annucci, 145 A.D.3d 1300, 1301, 44 N.Y.S.3d 242 [2016] ; Matter of Cotterell v. Taylor–Stewart, 145 A.D.3d 1245, 1246, 44 N.Y.S.3d 228 [2016] ). We find no merit to petitioner's claim that the test results were inaccurate because one of the reagents used had expired before the post-visit sample was tested. Notably, the correction officer who tested the sample explained that she made a clerical error by entering the date that the reagent bottle was opened as the expiration date on the urinalysis procedure form, and that the actual expiration date was subsequent to the test, as indicated on the reagent bottle label (see Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513 [2016] ; Matter of Kitchens v. Fischer, 65 A.D.3d 1431, 1432, 885 N.Y.S.2d 436 [2009] ). Likewise, although petitioner's test results also included those of another inmate, his claim of cross contamination is unpersuasive given the detailed testimony of the testing officer who confirmed that she independently tested the samples from each inmate one at a time. Contrary to petitioner's claim, upon reviewing the transcript of the disciplinary proceeding, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Safford v. Annucci, 144 A.D.3d 1271, 1272–1273, 46 N.Y.S.3d 226 [2016 ], lv denied 29 N.Y.3d 901, 2017 WL 1094364 [2017 ]; Matter of Bailey v. Annucci, 142 A.D.3d 1195, 1196, 37 N.Y.S.3d 633 [2016] ). We have considered petitioner's remaining contentions and find that they are either unpreserved or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Clark, Mulvey, Aarons and Pritzker, JJ., concur.