Opinion
526365
11-08-2018
In the Matter of Shem CARTER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Shem Carter, Napanoch, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Shem Carter, Napanoch, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.
After a sample of his urine twice tested positive for the presence of THC 50, petitioner was charged in a misbehavior report with using a controlled substance. Following a tier III disciplinary hearing, petitioner was found guilty of the charge, and that determination was upheld on administrative review. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.
We confirm. The misbehavior report, the positive urinalysis test results and the related documentation and the testimony adduced at the hearing constitute substantial evidence to support the determination of guilt (see Matter of Harriott v. Annucci, 131 A.D.3d 754, 754, 13 N.Y.S.3d 918 [2015], lv dismissed 27 N.Y.3d 1028, 33 N.Y.S.3d 862, 53 N.E.3d 739 [2016] ; Matter of Thompson v. Goord, 37 A.D.3d 914, 914, 829 N.Y.S.2d 724 [2007] ; Matter of Davis v. Goord, 8 A.D.3d 854, 855, 778 N.Y.S.2d 566 [2004] ). Further, the record establishes that petitioner was provided with all of the mandated urinalysis testing documentation (see 7 NYCRR 1020.4 [f][1][iv]; 1020.5[a] ) and, therefore, a proper foundation was laid for the admission of the positive test results (see Matter of Morales v. Venettozzi, 163 A.D.3d 1375, 1376, 77 N.Y.S.3d 902 [2018] ; Matter of Wade v. Annucci, 144 A.D.3d 1294, 1295, 40 N.Y.S.3d 296 [2016] ).
We also reject petitioner's argument that he was improperly denied the right to call as a witness a representative from the company that manufactured the urinalysis testing equipment. Given that a correction officer familiar with the testing equipment testified that it is not unusual for the numerical positive test results to vary from the first to the second test and that the numerical results were qualitative and not quantitative, calling a representative from the company that manufactured the urinalysis testing equipment to provide further testimony on this issue would have been irrelevant or redundant (see Matter of Muniz v. Fischer, 111 A.D.3d 1044, 1045, 974 N.Y.S.2d 667 [2013] ; Matter of Graziano v. Selsky, 9 A.D.3d 752, 753, 779 N.Y.S.2d 848 [2004] ; cf. Matter of Shepherd v. Annucci, 153 A.D.3d 1495, 1497, 61 N.Y.S.3d 386 [2017], appeal dismissed and lv. denied 30 N.Y.3d 1093, 69 N.Y.S.3d 860, 92 N.E.3d 1250 [2018] ; Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513 [2016] ).
Finally, petitioner challenges the denial of a request for certain documentation that he made pursuant to the Freedom of Information Law (see Public Officers Law art 6). Inasmuch as there is no indication in the record that petitioner has exhausted his administrative remedies with respect thereto, our review of the issue is precluded (see Matter of LaGrave v. Venettozzi, 157 A.D.3d 1184, 1185, 70 N.Y.S.3d 587 [2018] ; Matter of Harriott v. Annucci, 131 A.D.3d at 754, 13 N.Y.S.3d 918 ). Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.
Devine, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.