MONTALALOU v. COOMBE (1997)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Fritz MONTALALOU, Appellant, v. Philip COOMBE, Jr., Acting Commissioner, New York State Department of Correctional Services, Respondent.

Decided: September 30, 1997

Before DENMAN, P.J., and HAYES, CALLAHAN, DOERR and FALLON, JJ.

Norman P. Effman, Attica, for Appellant. Erin Peradotto by Aida Reyes, Buffalo, for Respondent.

Petitioner appeals from a judgment dismissing his CPLR article 78 petition that challenged a determination finding him guilty of violating inmate rule 113.12 (7 NYCRR 270.2[B][14][iii] [use of a controlled substance] ). The determination was based on a misbehavior report that stated that a urine sample provided by petitioner tested positive for cannabinoids. That test complied with the EMIT procedures, and “can constitute substantial evidence to support [a] determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance” (Matter of Lahey v. Kelly, 71 N.Y.2d 135, 138, 524 N.Y.S.2d 30, 518 N.E.2d 924). We reject the contention of petitioner that he is entitled to an independent test of the urine sample, conducted at his own expense (see, Matter of McPhee v. Coombe, 233 A.D.2d 963, 649 N.Y.S.2d 311, lv. dismissed 89 N.Y.2d 1026, 658 N.Y.S.2d 240, 680 N.E.2d 614).

Judgment unanimously affirmed without costs.

MEMORANDUM:

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