IN RE: Lindel BUGGSWARD (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 a prison disciplinary rule.

After his urine twice tested positive for the presence of cannabinoids, petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting the use of controlled substances.  Following a tier III disciplinary hearing, petitioner was found guilty as charged, and a penalty was imposed.  Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding to challenge the determination of guilt.

We confirm.  The misbehavior report, the testimony of the correction officer who twice tested petitioner's urine sample and the positive urinalysis test results constitute substantial evidence to support the finding of guilt (see Matter of Blunt v. Annucci, 155 A.D.3d 1226, 1226, 63 N.Y.S.3d 275 [2017];  Matter of Shepherd v. Annucci, 153 A.D.3d 1495, 1496, 61 N.Y.S.3d 386 [2017], appeal dismissed and lv denied 30 N.Y.3d 1093, 69 N.Y.S.3d 860, 92 N.E.3d 1250 [2018];  Matter of Smith v. Venettozzi, 145 A.D.3d 1277, 1277, 44 N.Y.S.3d 233 [2016], lv denied 29 N.Y.3d 910, 57 N.Y.S.3d 715, 80 N.E.3d 408 [2017] ).  Petitioner's claim that a discrepancy exists with respect to the time that his specimen was removed from the refrigerator and tested is unavailing;  the correction officer who tested petitioner's urine explained that he removed petitioner's sample from the refrigerator at 3:45 a.m. and placed the specimen on the testing apparatus at 4:31 a.m.—after performing the required calibration tests.  Accordingly, we find no merit to petitioner's chain of custody argument (see Matter of Faraldo v. Bezio, 93 A.D.3d 1007, 1008, 939 N.Y.S.2d 893 [2012];  cf. Matter of Bouton v. Annucci, 145 A.D.3d 1219, 1220, 43 N.Y.S.3d 565 [2016];  Matter of Hall v. Venettozzi, 98 A.D.3d 773, 773, 949 N.Y.S.2d 299 [2012] ).

To the extent that petitioner requested additional witnesses, his request was properly denied as there is no indication that the sought-after individuals had any direct knowledge of, were present at or otherwise were involved in petitioner's drug test (see Matter of Smith v. Rock, 108 A.D.3d 889, 889–890, 969 N.Y.S.2d 590 [2013], lv denied 22 N.Y.3d 854, 2013 WL 5716250 [2013];  Matter of Smalls v. Fischer, 89 A.D.3d 1294, 1294–1295, 932 N.Y.S.2d 589 [2011], lv denied 18 N.Y.3d 811, 2012 WL 1432200 [2012] ).  Further, inasmuch as the Hearing Officer explained on the record that any requested witnesses had to have been present at the time of the incident in order for their testimony to be deemed relevant, “the failure to provide petitioner with a written explanation of the denial does not require annulment” (Matter of Jackson v. Annucci, 144 A.D.3d 1285, 1286, 40 N.Y.S.3d 283 [2016], lv denied 29 N.Y.3d 907, 2017 WL 1842962 [2017] ).  Finally, upon reviewing the record, we find “no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias” (Matter of Washington v. Lee, 156 A.D.3d 1033, 1034, 64 N.Y.S.3d 612 [2017];  see Matter of Watson v. Gardner, 156 A.D.3d 1050, 1051, 66 N.Y.S.3d 545 [2017] ).  Petitioner's remaining arguments, to the extent that they have been preserved for our review, have been examined and found to be lacking in merit.

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

Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ., concur.