Opinion
2012-11-15
In the Matter of Mark JOHNSON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Mark Johnson, Gowanda, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Mark Johnson, Gowanda, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, MALONE JR., McCARTHY and EGAN JR., JJ.
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 respondent which found petitioner guilty of violating a prison disciplinary rule.
After a sample of his urine twice tested positive for the presence of opiates, petitioner was charged in a misbehavior report with using a controlled substance. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the correction officer who collected and tested the sample, provide substantial evidence supporting the determination of guilt ( see Matter of Tucci v. Selsky, 94 A.D.3d 1294, 1294–1295, 943 N.Y.S.2d 239 [2012];Matter of Curry v. Fischer, 93 A.D.3d 984, 984, 939 N.Y.S.2d 732 [2012] ). Contrary to petitioner's claim, the record reveals that the proper chain of custody of the sample was maintained. The testing officer stated that he followed the necessary procedures for handling and testingthe sample and explained that he had possession of the sample in the testing room from the time it was taken until it was destroyed, in accordance with the information set forth on the request for urinalysis test form ( see Matter of Moss v. Prack, 87 A.D.3d 1255, 1256, 930 N.Y.S.2d 311 [2011];Matter of Valdez v. Fischer, 85 A.D.3d 1529, 925 N.Y.S.2d 919 [2011],lv. denied17 N.Y.3d 716, 2011 WL 5526447 [2011];see also7 NYCRR 1020.4[d] ). Petitioner's remaining contentions have not been preserved for our review.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.