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In the Matter of Jesus R. v. Brian Fischer

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


June 30, 2011

IN THE MATTER OF JESUS R. VALDEZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 11, 2011

Before: Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, 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 THC-50. Following a tier III disciplinary hearing, petitioner was found guilty of the charge and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the correction officer who conducted the tests, supports the determination of guilt (see Matter of Shannon v Fischer, 73 AD3d 1373, 1374 [2010], lv denied 15 NY3d 708 [2010]; Matter of Xao He Lu v New York State Dept. of Corrections, 72 AD3d 1379, 1380 [2010]). Contrary to petitioner's claim, the chain of custody of the sample was established in accordance with the regulatory requirements as is evidenced by the information on the request for urinalysis test form and the testimony of the officer who tested the sample (see 7 NYCRR 1020.4 [e] [1]; Matter of Stanford v Fischer, 77 AD3d 1013, 1014 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1042 [2010]). Petitioner also challenges the validity of the training certificate issued to the officer who conducted the tests, asserting that it was not issued until after the officer had tested his urine. The officer, however, explained that the date discrepancy was a typographical error and that he was trained and certified prior to the time he conducted the tests, thereby establishing that he was qualified to do so (see Matter of Morales v Selsky, 281 AD2d 658, 658 [2001], lv denied 96 NY2d 713 [2001]). Petitioner's remaining contentions have been considered and are lacking in merit.

Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110630

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