Opinion
525544
07-26-2018
In the Matter of Elquiades MORALES, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Elquiades Morales, Cape Vincent, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Frank Brady of counsel), for respondent.
Elquiades Morales, Cape Vincent, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
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 Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
After his urine twice tested positive for the presence of buprenorphine, petitioner was charged in a misbehavior report with using a controlled substance. He was found guilty of that charge following a tier III disciplinary hearing and the determination was later affirmed on administrative review. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, positive urinalysis 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 Guadalupe v. Venettozzi, 158 A.D.3d 883, 884, 70 N.Y.S.3d 591 [2018] ; Matter of Bouton v. Annucci, 145 A.D.3d 1219, 1220, 43 N.Y.S.3d 565 [2016] ). Contrary to petitioner's contention, the information contained on the request for urinalysis form and the testimony of the correction officer who collected and tested the sample established a proper chain of custody of the sample, including during the delay in testing caused by a problem with the testing equipment (see Matter of Buggsward v. Rodriguez, 160 A.D.3d 1320, 1321, 75 N.Y.S.3d 349 [2018] ; Matter of Shepherd v. Annucci, 153 A.D.3d 1495, 1496, 61 N.Y.S.3d 386 [2017], appeal dismissed and lv denied 30 N.Y.3d 1093, 69 N.Y.S.3d 860, 92 N.E.3d 1250 [2018] ). Further, the record establishes that petitioner was provided with all of the mandated urinalysis testing documentation (see 7 NYCRR 1020.4 [f][1][iv]; 1020.5[a] ) and, therefore, a proper foundation was laid for the admission of the positive test results (see Matter of Wade v. Annucci, 144 A.D.3d 1294, 1295, 40 N.Y.S.3d 296 [2016] ; Matter of Paddyfote v. Fischer, 118 A.D.3d 1240, 1241, 987 N.Y.S.2d 719 [2014] ). Finally, despite recurring inaudible gaps, "we find that the hearing transcript, together with the audiotape of the hearing, are sufficient for meaningful review" ( Matter of Wilson v. Venettozzi, 160 A.D.3d 1307, 1307, 73 N.Y.S.3d 913 [2018] ; see Matter of Shearer v. Annucci, 155 A.D.3d 1277, 1278, 65 N.Y.S.3d 249 [2017] ). Petitioner's remaining contentions, including that the Hearing Officer was biased, have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ., concur.