Opinion
September 30, 1997
Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.
Present — Denman P.J., Hayes, Callahan, Doerr and Fallon, JJ.
Petitioner appeals from a judgment dismissing his CPLR article 78 petition that challenged a determination finding him guilty of violating inmate rule 113.12 ( 7 NYCRR 270.2 [B] [14] [iii] [use of a controlled substance]). The determination was based on a misbehavior report that stated that a urine sample provided by petitioner tested positive for cannabinoids. That test complied with the EMIT procedures, and "can constitute substantial evidence to support [a] determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance" ( Matter of Lahey v. Kelly, 71 N.Y.2d 135, 138). We reject the contention of petitioner that he is entitled to an independent test of the urine sample, conducted at his own expense ( see, Matter of McPhee v. Coombe, 233 A.D.2d 963, lv dismissed 89 N.Y.2d 1026).