Opinion
526741
03-14-2019
In the Matter of Malik MCKANNEY, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Malik McKanney, Wallkill, petitioner pro se. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Malik McKanney, Wallkill, petitioner pro se.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Clark, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENTProceeding 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 finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with drug use after his urine twice tested positive for THC. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and a penalty was imposed. Upon administrative review, the determination was affirmed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.
We confirm. The misbehavior report, positive EMIT test results and related documentation, together with the hearing testimony of the correction officer who tested the sample, provide substantial evidence supporting the determination of guilt (see Matter of Hernandez v. New York State Dept. of Corr. & Community Supervision, 167 A.D.3d 1206, 1206, 87 N.Y.S.3d 908 [2018] ; Matter of Scott v. Venettozzi, 166 A.D.3d 1183, 1184, 89 N.Y.S.3d 338 [2018] ; Matter of Ramos v. Annucci, 159 A.D.3d 1185, 1185, 72 N.Y.S.3d 634 [2018] ). Petitioner's denial that he used a controlled substance presented a credibility issue for the Hearing Officer to resolve (see Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513 [2016] ). Contrary to petitioner's claim, the chain of custody of his urine sample was adequately established by the information contained on the request for urinalysis form and the testimony of the correction officer who conducted both tests of the sample (see Matter of Ramos v. Annucci, 159 A.D.3d at 1185, 72 N.Y.S.3d 634 ; Matter of Blunt v. Annucci, 155 A.D.3d 1226, 1226–1227, 63 N.Y.S.3d 275 [2017] ). Although the request for urinalysis form reflects that the urine specimen was returned to the freezer after it was tested, the testing officer explained that this was an inadvertent clerical error inasmuch as he personally disposed of the specimen following the testing (see Matter of Blunt v. Annucci, 155 A.D.3d at 1226–1227, 63 N.Y.S.3d 275 ; Matter of Williams v. Annucci, 141 A.D.3d 1062, 1063, 36 N.Y.S.3d 536 [2016] ). Furthermore, inasmuch as the determination of guilt was not based upon any confidential information, the circumstances that resulted in the drug test were irrelevant, and it was unnecessary for the Hearing Officer to assess the credibility of the information (see Matter of Smith v. Venettozzi, 145 A.D.3d 1277, 1278, 44 N.Y.S.3d 233 [2016], lv denied 29 N.Y.3d 910, 2017 WL 2435320 [2017] ; Matter of Selah v. Lavalley, 117 A.D.3d 1261, 1261–1262, 984 N.Y.S.2d 895 [2014] ).
Petitioner's claim that he was improperly denied documentary evidence is without merit. The record establishes that petitioner was given, in addition to the required testing and related documentation, his requested documentation that existed, namely, the redacted portions of the freezer log, urine testing log and maintenance checklist. Accordingly, he was not deprived of the right to present relevant and nonredundant documentary evidence in his defense (see 7 NYCRR 254.6 [a][3]; Matter of Ocasio v. Bullis, 162 A.D.3d 1424, 1425, 80 N.Y.S.3d 505 [2018] ). In addition, the record reflects that the hearing was held in a fair and impartial manner, and there is nothing to indicate that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Mays v. Early, 161 A.D.3d 1412, 1413, 73 N.Y.S.3d 772 [2018] ). To the extent that petitioner's remaining contentions are properly before us, they have been reviewed and found to be without merit.
Garry, P.J., Clark, Devine, Aarons and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.