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In re Cagle

Supreme Court of New York, Third Department

July 11, 2013

In the Matter of MICHAEL CAGLE, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: June 6, 2013

Michael Cagle, Fallsburg, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

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. 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.

We confirm. The misbehavior report, related documentation and positive urinalysis test results, together with the testimony of the correction officers who collected the sample and tested it, provide substantial evidence supporting the determination of guilt (see Matter of Hart v Fischer, 89 A.D.3d 1357, 1357 [2011], lv denied 18 N.Y.3d 808 [2012]; Matter of Figueroa v Goord, 15 A.D.3d 705, 706 [2005]). Contrary to petitioner's claim, the chain of custody of the sample was properly established through the information contained on the request for urinalysis form and the testimony of the officer who conducted the test (see Matter of Hyzer v Fischer, 104 A.D.3d 983, 983 [2013]; Matter of Coleman v Fischer, 81 A.D.3d 1018 [2011]). Petitioner's claim that he did not receive adequate employee assistance has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Harris v Selsky, 9 A.D.3d 695, 696 [2004]; Matter of Samuels v Kelly, 143 A.D.2d 506 [1988], lv denied 73 N.Y.2d 707 [1989]). Therefore, we find no reason to disturb the determination of guilt.

Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ., concur.

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


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