IN RE: Walter ELLISON (2000)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

 Petitioner, a prison inmate, was found guilty of using a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids.   The misbehavior report and the testimony of the correction officer who authored the report provide substantial evidence of petitioner's guilt (see, Matter of Struble v. Goord, 268 A.D.2d 845, 700 N.Y.S.2d 871).   Petitioner's contention that his urine sample was confused with that of another inmate raised a credibility issue properly resolved by the Hearing Officer (see, Matter of Bonaguro v. Goord, 256 A.D.2d 849, 681 N.Y.S.2d 814).   We also reject petitioner's contention that the failure to refrigerate his urine sample prior to testing violated respondent's procedure regulations.   Refrigeration is required only if the sample is not tested “immediately” (7 NYCRR 1020.4[e][1][ii] ).   Inasmuch as petitioner's urine sample was kept in a secure area (see, 7 NYCRR 1020.4 [e][1][i] ) and was tested approximately three hours after it was obtained, there is no basis to disturb the conclusion that the refrigeration requirement was not violated (see, Matter of Peterson v. Goord, 268 A.D.2d 739, 701 N.Y.S.2d 488).

 Also without merit is petitioner's contention that his prehearing assistance was inadequate and violated his constitutional rights.   The record reveals that although petitioner initially was given the wrong procedure forms, the Hearing Officer acted diligently to cure the alleged deficiency (see, Matter of West v. Costello, 270 A.D.2d 673, 705 N.Y.S.2d 417).   Petitioner's remaining contentions, to the extent they have been preserved, have been examined and found to be without merit.

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

MEMORANDUM DECISION.