State of New York Supreme Court, Appellate Division Third Judicial Department
December 10, 2009
IN THE MATTER OF KEITH TOWNES, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: November 4, 2009
Before: Cardona, P.J., Spain, Kane, Malone Jr. and Stein, 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 was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. He was found guilty following a tier III disciplinary hearing. The determination was affirmed on administrative appeal, with a modified penalty. This CPLR article 78 proceeding ensued.
Contrary to petitioner's claim, the chain of custody of the specimen was properly established through the testing forms and the testimony of two correction officers who handled the sample (see Matter of White v Selsky, 32 AD3d 1101, 1101 ).
Petitioner was improperly deprived of a relevant witness. The main defense was that his medication regimen, specifically large amounts of ibuprofen, produced a false positive test result. The correction officer who conducted the test testified that ibuprofen would not produce a false positive, and a nurse administrator who reviewed petitioner's other medications testified that they would not produce such a result, but the record does not reveal whether these individuals were qualified to render such opinions. Petitioner requested the testimony of his treating physician, who was familiar with petitioner's medications and allegedly agreed to testify that ibuprofen could produce a false positive. The Hearing Officer improperly denied this requested witness as redundant (see Matter of Dawes v Selsky, 286 AD2d 806, 807-808 ; Matter of Gonzalez v Mann, 186 AD2d 326, 326 ; Matter of Torres v Coughlin, 166 AD2d 793, 793-794 ). As the witness's testimony apparently would not have been redundant and could have affected the outcome, we annul the determination and remit for further proceedings.
Cardona, P.J., Spain, Kane, Malone Jr. and Stein, JJ., concur.
ADJUDGED that the determination is annulled, without costs, petition granted, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.
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