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Matter of Roman v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Sep 17, 1998
253 A.D.2d 975 (N.Y. App. Div. 1998)

Opinion

September 17, 1998


Petitioner was found guilty of violating the prison disciplinary rule which prohibits inmates from using unauthorized controlled substances after two urinalysis tests yielded positive results for the presence of opiates. Contrary to petitioner's contention, the record establishes that Correction Officer Sean Barber, who authored the misbehavior report, was certified to perform the urinalysis tests and followed appropriate testing procedures. Furthermore, in view of Barber's testimony that he obtained petitioner's urine specimen and that it never left his presence, we reject petitioner's challenge to the sufficiency of the chain of custody, particularly as there is no evidence showing that the specimen could have been tampered with or confused with other samples ( see, Matter of Gatson v. Selsky, 220 A.D.2d 906). To the extent that petitioner presented testimony and evidence to the contrary, this merely presented a credibility issue for the Hearing Officer to resolve ( see, Matter of Symmonds v. Goord, 244 A.D.2d 737). Petitioner's claim that respondents failed to follow their own regulations and rules in conducting the tests lacks merit as it is based on a procedure that is not required to be performed under the current directive. Therefore, taking into account the misbehavior report and positive test results, along with the correction officers' testimony, we conclude that substantial evidence supports the determination of petitioner's guilt ( see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 143; Matter of Sanatana v. Goord, 239 A.D.2d 695, 696).

Crew III, J.P., White, Yesawich Jr., Carpinello and Graffeo, JJ., concur.

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


Summaries of

Matter of Roman v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Sep 17, 1998
253 A.D.2d 975 (N.Y. App. Div. 1998)
Case details for

Matter of Roman v. Selsky

Case Details

Full title:In the Matter of JOSE ROMAN, Petitioner, v. DONALD SELSKY, as Director of…

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

Date published: Sep 17, 1998

Citations

253 A.D.2d 975 (N.Y. App. Div. 1998)
679 N.Y.S.2d 426

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