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Stanford v. Fischer

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


October 7, 2010

IN THE MATTER OF JOE V. STANFORD, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: August 2, 2010

Before: Cardona, P.J., Mercure, Spain, Stein 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 was charged in a misbehavior report with violating the prison disciplinary rule prohibiting inmates from using controlled substances after a sample of his urine twice tested positive for the presence of opiates. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, positive urinalysis test results and related documentation, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Frye v Commissioner of Correctional Servs., 69 AD3d 1074, 1074 [2010]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]). Contrary to petitioner's claim, the chain of custody of the sample was sufficiently established by the information contained on the request for urinalysis form as well as the testimony of the officers who handled and tested the sample (see Matter of Smith v Fischer, 54 AD3d 1083, 1084 [2008]; Matter of White v Selsky, 32 AD3d 1101, 1101 [2006]; Matter of Feliciano v Selsky, 17 AD3d 951, 951-952 [2005]). Therefore, a proper foundation was laid for the admission of the positive test results. In addition, there is no merit to petitioner's claim that the hearing was not completed in a timely manner given that appropriate extensions were obtained (see Matter of Harrison v Votraw, 56 AD3d 868 [2008]; Matter of Sanders v Goord, 47 AD3d 1183, 1183 [2008]). Petitioner's remaining contentions, including his assertion that he was denied a fair and impartial hearing, have been considered and are unavailing.

Cardona, P.J., Mercure, Spain, Stein and Garry, JJ., concur.

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

20101007

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