Lorino v. Murphy

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. 1038 Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after two urinalysis tests produced positive results for opiates. Initially, we note that by failing to raise any objection at the hearing, petitioner failed to preserve for our review his challenge to the introduction into evidence of the drug test results (see Matter of McDermott v Selsky, 288 AD2d 669 [2001]). In any event, the testing documentation indicating that appropriate testing procedures were followed was sufficient to establish the required proper foundation for reliance on the positive test results (see Matter of Rowe v Goord, 289 AD2d 764 [2001]). These test results, together with the misbehavior report and testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Valerio v Selsky, 306 AD2d 713 [2003]; Matter of Springs v Murphy, 283 AD2d 697 [2001]). Although petitioner was taking prescription medication, the facility pharmacist refuted petitioner’s claims that such medication would cause a false positive (see Matter of Jimenez v Goord, 278 AD2d 577 [2000]). Petitioner’s remaining contentions, that he was denied the right to call a witness and the Hearing Officer was improperly appointed, have been reviewed and found to be without merit. Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.