Lugo v. Gaines

Determination of Departmental Review Board of the New York State Department of Correctional Services, affirming disposition of a superintendent’s proceeding pursuant to hearing held on or about May 11, 1979, annulled, on the law and the facts, and the charges filed against petitioner dismissed, and the record thereof expunged, and the petitioner’s claim for lost wages dismissed without prejudice, and without costs. Petitioner was an inmate in Lincoln Correctional Facility in Manhattan under supervision of the department.1 In accordance with his temporary release program, petitioner was permitted to be gainfully employed, and also to leave the facility each weekend to visit overnight at the residence of his brother. The rules provided that, when he returned from such a visit, he was subject to submission to urinalysis to determine whether he had ingested any forbidden substance while at liberty. When he left for such a visit on Saturday, April 7, 1979, to return the next day, he was advised that he would undergo such a test when he came back Sunday night. Ten days later he was informed that a urine specimen taken from him had tested positive for cocaine. He was forthwith placed on restriction until appearance on April 20 before the adjustment committee, which referred petitioner to a superintendent’s proceeding, i.e., a hearing before a lieutenant in the correction system. The procedure was governed by section 253.3 et seq. of the Rules of the Department of Correctional Services (7 NYCRR 253.3). The regulations applicable, q.v., do not provide for what, we are accustomed to call an adversary proceeding, referring to the hearing officer as “the person conducting the proceeding” who, instead of hearing evidence, was to conduct “interviews.” Particularly significant are subdivision (c) of section 253.4: “(c) The person conducting the proceeding shall interview one or more employees who witnessed or have direct knowledge of the incident and he may also interview any other person who can be of [543] assistance in contributing relevant information”2 and subdivision (g): “(g) Where the person conducting the proceeding is satisfied, after hearing the inmate, that the record of the proceeding contains substantial evidence in support of the charge, he shall affirm the charge and shall so advise the inmate.” The hearing officer proceeded on the theory that the charge was established by the laboratory report of the test, and the burden of proof was thus assigned to petitioner: “Until you can prove this is an error this court will accept this as physical evidence.” Petitioner stoutly claimed that he had not taken cocaine; that, having a great stake in remaining in good standing, he would not do so; that, in any event, he was not a drug user; that he had no recollection of the April 8 collection of a specimen; that the usual procedure was that, far from giving this specimen, unaccompanied except for an officer, deposited in a bottle labeled with his name, the usual procedure was to have as many as six inmates together at the urinals, with one officer present, and each one making his deposit into an unlabeled bottle. This evidence should have been sufficient to negate any presumption of regularity, even assuming that such a presumption applies to this type of unorthodox hearing. But no proof whatever was forthcoming to refute petitioner’s statement; there was no evidence whatsoever of the circumstance of the deposit of urine. Not even a bare minimum of evidence of a chain of custody was provided. (See Matter of Brown v Murphy, 43 AD2d 524.) Assuming that an administrative proceeding may — and this is not disputed — rely on the laboratory report’s regularity, that provided started only at the moment a labeled bottle was received there, and later processed. There was no evidence stating what happened from the moment the specimen was provided till it came to the lab. By argument only, referring to at least one incident of error known to him personally, petitioner’s assistant attempted to bring home to the hearing officer the possibility of error; petitioner’s institutional counselor joined in the argument, but for all the attention paid to it, it might not have been said at all. The officer who was supposed to have supervised the deposit of urine was presumably available as an employee “who witnessed *** the incident” but he was never called, a direct violation of subdivision (c) of section 253.4. (See Matter of Sowa v Looney, 23 NY2d 329, 333.) All that we find to counter petitioner’s version is in the answer to the petition, not part of the proceedings on the hearing, or part of anything which was presented at the institutional level. The statements in the answer, however, are presented in respondents’ brief as though they were actual proven fact in the record of the proceeding. This fundamental error is perpetuated in the dissent. In short, there was nothing before the hearing officer to provide evidence of a chain of custody. Thus, there was not substantial evidence on which to bottom the adjudication of petitioner’s guilt and accordingly no rational basis for the determination. (See Matter of Pell v Board of Educ., 34 NY2d 222, 230-231.) And the disregard of the agency’s own regulations was, in addition, completely arbitrary. It is respondents’ position that, if we annul, we are required to remand for a new hearing. The sanction invoked against petitioner was to remove him from his release program, thus confining him and depriving him of employment. His penalty has long since been served. All that can be done for him here is to expunge the unfortunate incident from his record. (See Matter of Hurley v Ward, 61 AD2d 881; Collins v Hammock, 52 NY2d 798.) Not having jurisdiction over his claim for lost wages (NY Const, art VI, § 9; Court of Claims Act, § 9, subd 2), we dismiss that item [544] of relief, without prejudice to petitioner’s proceeding as he may be advised to do. Concur — Birns, J. P., Sandler and Markewich, JJ. Footnotes [1] The respondents named in the title of this CPLR article 78 proceeding are respectively superintendent of the facility and acting commissioner of the department. [2] It is claimed by petitioner that this was violated in that neither his counselor nor his assistant nor the hearing officer interviewed two requested witnesses. From the context, it appears that they would have been at most character witnesses. But this section was violated in more significant fashion, as appears infra.