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In the Matter of Demetrius v. Brian Fischer

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


February 3, 2011

IN THE MATTER OF DEMETRIUS COLEMAN, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

Decided and Entered: February 3, 2011

MEMORANDUM AND JUDGMENT

Calendar Date: December 16, 2010

Before: Cardona, P.J., Mercure, Rose, Garry and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to, among other things, review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was found guilty following a tier III hearing of violating certain prison disciplinary rules in October 2009. Following a separate tier III disciplinary hearing, he was found guilty in November 2009 of violating the rule prohibiting the use of a controlled substance. Both determinations were affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued. After issue was joined, Supreme Court annulled the October 2009 determination and remitted for further proceedings, and transferred that part of the petition challenging the November 2009 determination to this Court.

We confirm. The misbehavior report, documented positive urinalysis test results and the hearing testimony provide substantial evidence of petitioner's guilt (see Matter of Stanford v Fischer, 77 AD3d 1013, 1013 [2010]; Matter of Hill v Smith, 73 AD3d 1418, 1418 [2010]). Contrary to petitioner's argument, the chain of custody of the sample was adequately established by the information on the request for urinalysis form and the testimony of the officer who tested the sample (see Matter of Stanford v Fischer, 77 AD3d at 1014). Petitioner's remaining arguments, to the extent they are properly before us, have been considered and found to be without merit.

Cardona, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110203

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