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In the Matter of Kenneth Neil v. Brian Fischer

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


November 17, 2011

IN THE MATTER OF KENNETH NEIL, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 28, 2011

Before: Spain, J.P., Rose, Lahtinen, McCarthy 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 using a controlled substance after a sample of his urine twice tested positive for the presence of THC. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. The determination was later upheld on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the positive urinalysis test results and related documentation and the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Coleman v Fischer, 81 AD3d 1018 [2011]; Matter of Frye v Commissioner of Correctional Servs., 69 AD3d 1074, 1074 [2010]). The chain of custody of the specimen was properly established by the testimony of the officer who collected it as well as the information contained on the request for urinalysis form (see 7 NYCRR 1020.4 [e] [1] [i]; Matter of Stanford v Fischer, 77 AD3d 1013, 1013 [2010]; Matter of Molina v Selsky, 21 AD3d 1238, 1238 [2005]). In view of this, and given that the required testing documentation was provided to petitioner, a proper foundation was laid for the positive test results (see 7 NYCRR 1020.5 [a] [1]; Matter of Karapetian v Fischer, 65 AD3d 772, 772 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]). Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.

Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20111117

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