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Moolenaar v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


November 25, 2009

IN THE MATTER OF DARRELL MOOLENAAR, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Cardona, P.J., Spain, Rose, Malone Jr. and Garry, JJ.

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 which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, suspected of marihuana use, was required to submit a urine sample, which twice tested positive for cannabinoids. Following a tier III disciplinary hearing, petitioner was found guilty of using a controlled substance. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, the positive urinalysis tests and the testimony of the correction officer who collected the urine sample and performed the tests provide substantial evidence to support the determination (see Matter of Lopez v Fischer, 60 AD3d 1180 [2009]; Matter of Smith v Fischer, 54 AD3d 1083, 1084 [2008]). Contrary to petitioner's claim, the chain of custody was properly established as the officer who performed the tests had the sample in his possession at all times (see 7 NYCRR 1020.4 [e] [1] [i]; Matter of McAdoo v Goord, 32 AD3d 1058, 1058-1059 [2006]; Matter of Odome v Goord, 14 AD3d 975, 975-976 [2005]).

Cardona, P.J., Spain, Rose, Malone Jr. and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20091125

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