Coleman v. Bezio

McCarthy, J. 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. Petitioner was charged in a misbehavior report with using a controlled substance after a specimen of his urine twice tested positive for the presence of cannabinoids. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. Petitioner asserts, among other things, that the determination is not supported by substantial evidence because the chain of custody of the specimen was not established in accordance with the regulations (see 7 NYCRR 1020.4). Specifically, petitioner claims that the correction officer who tested the specimen was seen in the yard after the specimen was taken and did not have it in his possession at all times. The request for urinalysis form set forth in detail the times that the specimen was taken, tested and disposed of, as well as the name of the individual who handled it. The form was completed by the correction officer who collected and tested the specimen. Although he could not recall if he stayed in the room with the urine sample from the time it was obtained until it was tested and the remainder destroyed, he testified regarding his routine, namely, that if he went anywhere else he would have left the specimens in the testing machine in the locked urinalysis testing room. That officer was the only person with keys to the testing room. This testimony demonstrates that the specimen was either in the correction officer’s physical possession or locked in a secure location under his exclusive control, sufficient to establish that the chain of custody was properly maintained (see Matter of Odome v Goord, 8 AD3d 921, 922 [2004]). The misbehavior report, the officer’s testimony, the positive urinalysis test results and supporting documentation provide substantial evidence to support the determination of guilt (see Matter of Lindo v Fischer, 72 AD3d 1295, 1295-1296 [2010]; Matter of Duffy v Fischer, 69 AD3d 1073, 1074 [2010]). Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit. [1334] Peters, J.P, Rose and Kavanagh, JJ., concur.