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In the Matter of Mark Johnson v. Brian Fischer

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


November 15, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: September 26, 2012

Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy 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 review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

After a sample of his urine twice tested positive for the presence of opiates, petitioner was charged in a misbehavior report with using a controlled substance. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the correction officer who collected and tested the sample, provide substantial evidence supporting the determination of guilt (see Matter of Tucci v Selsky, 94 AD3d 1294, 1294-1295 [2012]; Matter of Curry v Fischer, 93 AD3d 984, 984 [2012]). Contrary to petitioner's claim, the record reveals that the proper chain of custody of the sample was maintained. The testing officer stated that he followed the necessary procedures for handling and testing the sample and explained that he had possession of the sample in the testing room from the time it was taken until it was destroyed, in accordance with the information set forth on the request for urinalysis test form (see Matter of Moss v Prack, 87 AD3d 1255, 1256 [2011]; Matter of Valdez v Fischer, 85 AD3d 1529 [2011], lv denied 17 NY3d 716 [2011]; see also 7 NYCRR 1020.4 [d]). Petitioner's remaining contentions have not been preserved for our review.

Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20121115

© 1992-2012 VersusLaw Inc.



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