IN RE: Alvin DAVIS (2004)

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

 Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after his urine sample twice tested positive for the presence of opiates.   Contrary to petitioner's assertion, the urinalysis request forms establish, and the testimony confirms, that the urine sample was properly handled in accordance with the appropriate procedures and an unbroken chain of custody was maintained (see 7 NYCRR 1020.4[d][2], [5];  [e];  Matter of Victor v. Goord, 309 A.D.2d 1026, 766 N.Y.S.2d 138 [2003] ).   There is no requirement that after a urine sample is provided the specimen bottle be sealed (see 7 NYCRR 1020.4[d][2] ).

 Furthermore, the documentation relating to the urinalysis testing, which indicates that the relevant testing procedures were followed, is sufficient to establish a proper foundation to rely on the test results (see Matter of Lorino v. Murphy, 309 A.D.2d 1037, 766 N.Y.S.2d 131 [2003] ).   Although petitioner maintains that the urine sample he provided on November 27, 2002 should have been tested in order to verify the positive test result at issue, it is well settled that an EMIT test result when confirmed by a second test is sufficiently reliable and can constitute substantial evidence to support a determination of guilt (see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 143, 524 N.Y.S.2d 30, 518 N.E.2d 924 [1987];  Matter of Shaffer v. Hoke, 174 A.D.2d 787, 789, 571 N.Y.S.2d 117 [1991] ).   To the extent that petitioner's remaining contentions have been preserved for our review, we find them to be without merit.

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