IN RE: Dale PETERSON (2000)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany 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 violating the prison disciplinary rule that prohibits the unauthorized use of controlled substances after two EMIT urinalysis tests resulted in positive readings for cannabinoids.   In this CPLR article 78 proceeding to review that determination, petitioner claims only that the failure to refrigerate his urine sample prior to testing violated respondents' procedure.   Refrigeration is required only if the sample is not tested “immediately” (see, 7 NYCRR 1020.4 [e][1][ii] ).   Inasmuch as the urine sample was kept in a secure area (see, 7 NYCRR 1020.4[e][1][i] ) and was tested approximately two hours after it was obtained, there is no basis to disturb respondents' conclusion that the refrigeration requirement was not violated, particularly in the absence of any claim that the lack of refrigeration for such a brief period could cause false positive test results.

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

MEMORANDUM DECISION.