Castaldo v. Goord

—Spain, 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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was found guilty of violating the prison disciplinary rules prohibiting the use of a controlled substance, conspiring to introduce a controlled substance into the facility and violating the family reunion program rules after a sample of his urine obtained during a family reunion program visit with his wife twice tested positive for the presence of cannabinoids. Based on our review of the record, we conclude that there is insufficient evidence to support the charge of conspiring to introduce a controlled substance into the facility and, accordingly, the determination on this charge must be annulled. Since petitioner has apparently served his administrative penalty, the appropriate remedy on this annulled charge is expunge [839] ment from petitioner’s institutional record (see, Matter of Delgado v Hurlburt, 279 AD2d 734, 735 n). Turning to the remaining charges, we find that the misbehavior report, together with the positive results of the urinalysis tests and the testimony adduced at the hearing, constitute substantial evidence to support the determination of guilt (see, Matter of Smart v Goord, 266 AD2d 606; Matter of Sanatana v Goord, 239 AD2d 695). Likewise, we find that the evidence sufficiently demonstrated that petitioner’s urine tests were performed in accordance with the applicable procedures and the chain of custody was adequately established (see, 7 NYCRR 1020.4 [e]; Matter of Terry v Goord, 272 AD2d 701). Mercure, J. P., Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of conspiring to introduce a controlled substance into the facility; petition granted to that extent and respondents are directed to expunge all references thereto from petitioner’s institutional record; and, as so modified, confirmed.