From Casetext: Smarter Legal Research

In the Matter of Dunn v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
May 20, 2004
7 A.D.3d 938 (N.Y. App. Div. 2004)

Opinion

94580.

Decided and Entered: May 20, 2004.

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 Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

James Dunn, Rome, petitioner pro se.

Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Cardona, P.J., Crew III, Spain, Mugglin and LAHTINEN, JJ.


MEMORANDUM AND JUDGMENT

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine twice tested positive for the presence of opiates. Contrary to petitioner's assertion, the chain of custody and the testimony from the correction officer who performed the tests confirms that petitioner's urine sample was properly secured and that all appropriate testing procedures were followed (see 7 NYCRR 1040.4 [e]; Matter of Victor v. Goord, 309 A.D.2d 1026), thereby providing a proper foundation for reliance on the positive test results (see 7 NYCRR 1020.5 [a] [1]; Matter of Carter v. Senkowski, 278 A.D.2d 730). Inasmuch as the misbehavior report, positive results of the urinalysis tests and testimony of the correction officer who conducted the tests provides substantial evidence to support the determination of guilt, it will not be disturbed (see Matter of Zippo v. Goord, 2 A.D.3d 1006; Matter of Adams v. Goord, 2 A.D.3d 927). Petitioner's remaining contentions are either unpreserved or found to be without merit.

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


Summaries of

In the Matter of Dunn v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
May 20, 2004
7 A.D.3d 938 (N.Y. App. Div. 2004)
Case details for

In the Matter of Dunn v. Selsky

Case Details

Full title:IN THE MATTER OF JAMES DUNN, Petitioner, v. DONALD SELSKY, as Director of…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 20, 2004

Citations

7 A.D.3d 938 (N.Y. App. Div. 2004)
776 N.Y.S.2d 526

Citing Cases

In the Matter of Polite

Initially, we reject petitioner's contention that the determination must be annulled because the correction…

In the Matter of Otero v. Selsky

Initially, we reject petitioner's claim that a proper foundation was not laid for the admission of the…