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In the Matter of Shakeim Johnson v. Brian Fischer

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


March 14, 2013

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

MEMORANDUM AND JUDGMENT

Calendar Date: January 24, 2013

Before: Peters, P.J., Mercure, Stein and Spain, 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 cannabinoids. He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Petitioner argues that the determination is not supported by substantial evidence because a proper foundation for the admission of the positive urinalysis test results was not established. Specifically, he asserts that an expired "negative calibrator/control" reagent was used in the test, leading to a false positive result. We find this argument to be unpersuasive. The correction officer who tested petitioner's urine specimen stated that he made a clerical error on the urinalysis test procedure form in noting an expiration date of February 28, 2011 for the "negative calibrator/control" reagent, and that the correct date was February 28, 2012. Furthermore, he brought a copy of the reagent box containing this information to the hearing. Accordingly, the officer adequately explained the discrepancy, which did not undermine the validity of the positive test results (see Matter of Mobayed v Fischer, 89 AD3d 1266, 1267 [2011]; Matter of Vargas v Bezio, 69 AD3d 1075, 1075-1076 [2010]). Upon reviewing the record, we conclude that the misbehavior report, positive urinalysis test results and related documentation, together with the testimony of the correction officers involved, provide substantial evidence supporting the determination of guilt (see Matter of Curry v Fischer, 93 AD3d 984, 984 [2012]; Matter of Bornstorff v Bezio, 73 AD3d 1397, 1397 [2010]).

Peters, P.J., Mercure, Stein and Spain, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130314

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