| Matter of Smart v Fischer |
| 2009 NY Slip Op 08536 [67 AD3d 1222] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Deshawn Smart, 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 Ulster County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
Following a tier III disciplinary hearing, petitioner was found guilty of violating both theprison rule prohibiting the use of controlled substances and the rules governing the familyreunion program. The determination of guilt was upheld on administrative appeal, promptingpetitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, the positive test results for the presence of opiates inurine samples taken from petitioner, the supporting documentation and the hearing testimony ofthe testing officer provide substantial evidence of petitioner's guilt (see Matter of Smith vDubray, 58 AD3d 968, 968 [2009]; Matter of Webb v Leclaire, 52 AD3d 1131, 1132 [2008]). Contraryto petitioner's contention, the record reflects that the requisite paperwork regarding the systemused to test his urine was included with the misbehavior report (see 7 NYCRR 1020.4 [e][1] [iv]) and in the disciplinary hearing record (see 7 NYCRR 1020.5 [a] [1]).
Petitioner also contends that there was a gap in the chain of custody after the samples wereremoved from the freezer prior to testing. Our review of the information on the urinalysis testform and the testing officer's hearing testimony, however, establishes that the proper chain of[*2]custody over petitioner's urine sample was maintained(see 7 NYCRR 1020.4 [e] [1] [i]; Matter of Daniels v Goord, 38 AD3d 1073, 1073 [2007]).Moreover, petitioner's claim that the proper testing procedures were not followed, in that allpersons handling his test samples did not make an appropriate notation on the chain of custodysection of the urinalysis form, is unfounded. The testing officer testified that he made a notationon the form at the request of the officer that actually removed the samples from the storagefreezer, and "it is enough that another, a secretary or some other staff member, make thenotations on the handler's behalf" (Matter of Hop Wah v Coughlin, 153 AD2d 999, 1000[1989], lv denied 75 NY2d 705 [1990]; accord Matter of Branch v Selsky, 298AD2d 744, 744 [2002]).
Cardona, P.J., Peters, Rose, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.