IN RE: Jose GUADALUPE (2018)

MEMORANDUM AND JUDGMENT

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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Following a family reunion visit with his wife, petitioner provided a urine sample that twice tested positive for the presence of buprenorphine, after a sample he had provided prior to the visit tested negative.  He was thereafter charged in a misbehavior report with using a controlled substance and violating family reunion program procedures.  Following a tier III disciplinary hearing, petitioner was found guilty as charged.  This determination was affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, positive urinalysis test results and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Streeter v. Annucci, 145 A.D.3d 1300, 1301, 44 N.Y.S.3d 242 [2016];  Matter of Bailey v. Prack, 140 A.D.3d 1508, 1509, 37 N.Y.S.3d 163 [2016], lv denied 28 N.Y.3d 904, 2016 WL 6208984 [2016] ).  The chain of custody of the sample was properly established through the information contained in the request for urinalysis form and the testimony of the correction officer who collected and tested the sample (see Matter of Cotterell v. Taylor–Stewart, 145 A.D.3d 1245, 1246, 44 N.Y.S.3d 228 [2016];  Matter of Martinez v. Annucci, 134 A.D.3d 1380, 1381, 21 N.Y.S.3d 771 [2015] ).  The form indicates that there was approximately a one-hour gap between when the sample was obtained and when it was placed in the freezer, and the officer testified that the sample was locked in the family reunion program office during that time and that he was the only one with access to the office (see Matter of Mitchell v. Goord, 28 A.D.3d 1039, 1040, 813 N.Y.S.2d 278 [2006] ).

We also reject petitioner's contention that, because both positive test results were obtained by the same testing officer, a proper foundation for the admission of the drug test results was not established.  7 NYCRR 1020.4 former (e)(1)(iv) indicated that, once an initial positive test result is obtained, a second test “shall be performed on the same sample, by a different trained individual, if available,” but that language was deleted well before the testing here was conducted (see 7 NYCRR 1020.4[f][1][iv];  see also Dept of Corr & Community Supervision Directive No. 4937[IV][G][1][d] ).  Accordingly, the Hearing Officer properly denied, as irrelevant, petitioner's request for a list of other certified correction officers that could have conducted the second test (see Matter of Grant v. Rock, 122 A.D.3d 1225, 1226, 997 N.Y.S.2d 541 [2014];  Matter of Bornstorff v. Bezio, 73 A.D.3d 1397, 1398, 903 N.Y.S.2d 168 [2010] ).  Similarly, petitioner was not denied adequate employee assistance by the assistant's failure to provide the list of certified correction officers (see Matter of Rosales v. Pratt, 98 A.D.3d 764, 764, 949 N.Y.S.2d 820 [2012], lv denied 19 N.Y.3d 816, 2012 WL 5309615 [2012];  Matter of Randall v. Fischer, 94 A.D.3d 1302, 1302, 942 N.Y.S.2d 678 [2012] ).  Finally, we reject petitioner's contention that the Hearing Officer was biased or that petitioner was otherwise denied a fair hearing (see Matter of McBride v. Annucci, 142 A.D.3d 1218, 1219, 37 N.Y.S.3d 638 [2016];  Matter of Yven Chen v. Venettozzi, 141 A.D.3d 1072, 1073, 35 N.Y.S.3d 605 [2016] ).  Petitioner's remaining claims, to the extent that they are properly before us, have been considered and found to be without merit.

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

Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.