Feliciano v. Selsky

Apr 28, 2005
Versions:17 A.D.3d 951
793 N.Y.S.2d 635
2005 N.Y. App. Div. LEXIS 4492

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 Correctional Services 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 the unauthorized use of a controlled substance. He was found guilty of this charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Contrary to petitioner‘s claim, the record reveals that the chain of custody of his urine specimen was properly established. The request for urinalysis form disclosed the time the sample was taken, when it was handled by the testing officer and when it was destroyed. The testing officer stated that he had control of the specimen the entire time and that it was not handled by any other officers. Inasmuch as the requirements of 7 NYCRR 1020.4 were satisfied, there was a proper foundation for the introduction of the positive test results (see Matter of Saif‘Ul‘Bait v Goord, 15 AD3d 703, 704 [2005]; Matter of Odome v Goord, 14 AD3d 975, 975 [2005]). Although the request for urinalysis form did not specify the physical location of the specimen at each moment, this was not a requirement (see 7 NYCRR 1020.4 [e]). Considering the misbehavior report, the positive urinalysis test results and related documentation, as well as the testimony at the hearing, substantial evidence supports the determination at issue (see Matter of Figueroa v Goord, 15 AD3d 705, 706 [2005]; Matter of Zippo v Goord, 2 AD3d 1006, 1006 [2003]).

Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.