| Matter of Smith v Fischer |
| 2008 NY Slip Op 06768 [54 AD3d 1083] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Peter M. Smith, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with possessing a controlled substance afterhis urine twice tested positive for the presence of cannabinoids. Following a tier III disciplinaryhearing, he was found guilty of this charge. After the determination was affirmed onadministrative appeal, this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, urinalysis test results and related documentation, aswell as the hearing testimony, provide substantial evidence supporting the determination of guilt(see Matter of Griffin v Goord, 47AD3d 1046 [2008]; Matter ofMoretti v Selsky, 46 AD3d 1049, 1050 [2007]). Contrary to petitioner's claim, the chainof custody of the sample was properly maintained as evidenced by the information on the requestfor urinalysis test form and the testimony of the officers who collected and tested the sample (see Matter of McAdoo v Goord, 32AD3d 1058, 1058 [2006]; Matter ofMolina v Selsky, 21 AD3d 1238, 1238 [2005]). Moreover, the one-hour discrepancy inthe test times noted on some of the urinalysis test documentation was adequately explained bythe testing officer who indicated that such discrepancy was due to daylight savings time (see Matter of Crosby v Goord, 38AD3d 1110[*2][2007]). Petitioner's claim that a differentofficer should have conducted the second test is unpreserved inasmuch as he did not raise it atthe disciplinary hearing; accordingly, it may not be reviewed (see Matter of Khan v NewYork State Dept. of Health, 96 NY2d 879, 880 [2001]).
Peters, J.P., Spain, Lahtinen, Kane and Stein, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.