IN RE: Marcus AYUSO (2019)

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 buprenorphine during a random drug test, petitioner was charged in a misbehavior report with using a controlled substance.  He was found guilty of that charge following a tier III disciplinary hearing, and the determination was later affirmed on administrative review.  This CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, positive EMIT test results and related documentation, together with the hearing testimony of the correction officer who tested the sample, provide substantial evidence supporting the determination of guilt (see Matter of Hernandez v. New York State Dept. of Corr. & Community Supervision, 167 A.D.3d 1206, 1206, 87 N.Y.S.3d 908 [2018];  Matter of Scott v. Venettozzi, 166 A.D.3d 1183, 1184, 89 N.Y.S.3d 338 [2018];  Matter of Morales v. Venettozzi, 163 A.D.3d 1375, 1376, 77 N.Y.S.3d 902 [2018] ).  Petitioner's denial that he used a controlled substance presented a credibility issue for the Hearing Officer to resolve (see Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513 [2016] ).  Although the reagent expiration dates listed on the urinalysis procedure forms indicated that the test's reagents had expired, the correction officer who performed the test explained that this was a clerical error and confirmed that the actual expiration date had not passed (see Matter of Ramos v. Annucci, 159 A.D.3d 1185, 1185–1186, 72 N.Y.S.3d 634 [2018] ).  Similarly, although the testing officer's signature did not appear on the bottom of the form containing the second test result, the officer testified that he conducted the test and that this omission was also an inadvertent clerical error (see Matter of Blunt v. Annucci, 155 A.D.3d 1226, 1226–1227, 63 N.Y.S.3d 275 [2017];  Matter of Williams v. Annucci, 141 A.D.3d 1062, 1063, 36 N.Y.S.3d 536 [2016] ).  Moreover, the officer conducting the EMIT tests was not required to refrigerate the urine sample during the 12 minutes that elapsed between the two tests (see 7 NYCRR 1020.4[f][1][ii];  cf. Matter of Lyons v. Annucci, 152 A.D.3d 1099, 1100, 56 N.Y.S.3d 477 [2017];  Matter of Peterson v. Goord, 268 A.D.2d 739, 739 [2000];  see also Dept of Corr & Community Supervision former Directive No. 4937[IV][G][1];  Appendix C [Oct. 22, 2014] ).  Accordingly, petitioner's contention regarding the chain of custody is unpersuasive (see Matter of Ramos v. Annucci, 159 A.D.3d at 1185–1186, 72 N.Y.S.3d 634;  Matter of Blunt v. Annucci, 155 A.D.3d at 1226–1227, 63 N.Y.S.3d 275;  Matter of Belle v. Prack, 140 A.D.3d at 1510, 35 N.Y.S.3d 513).

Petitioner's claim regarding the alleged delay in conducting the hearing lacks merit, as a one-day extension was timely requested and granted due to the unavailability of the Hearing Officer, and the hearing was commenced by the date set forth in the extension (see 7 NYCRR 251–5.1[a];  Matter of Ayuso v. Venettozzi, 159 A.D.3d 1208, 1209, 74 N.Y.S.3d 104 [2018] ).  Moreover, contrary to petitioner's contention, the applicable regulations do not require that an inmate be given advance notice of the reason for a request for an adjournment or extension prior to the hearing (see 7 NYCRR 251–5.1[b];  Matter of Young v. Coughlin, 144 A.D.2d 753, 753, 534 N.Y.S.2d 747 [1988], lv dismissed 74 N.Y.2d 625, 541 N.Y.S.2d 980, 539 N.E.2d 1108 [1989] ).  As to petitioner's inadequate employee assistance claim, an inmate does not have a constitutional due process right to the selection of a particular person as his or her employee assistant (see Matter of Grigger v. Goord, 288 A.D.2d 892, 892, 732 N.Y.S.2d 197 [2001], lv denied 97 N.Y.2d 610, 740 N.Y.S.2d 694, 767 N.E.2d 151 [2002];  Matter of Scott v. Kelly, 143 A.D.2d 540, 540, 533 N.Y.S.2d 157 [1988], lv denied 73 N.Y.2d 705, 539 N.Y.S.2d 298, 536 N.E.2d 627 [1989] ), and, in any event, the record reflects that petitioner received meaningful assistance and failed to demonstrate any prejudice flowing from the alleged deficiencies (see e.g. Matter of Scott v. Annucci, 164 A.D.3d 1553, 1554, 84 N.Y.S.3d 279 [2018] ).  Finally, the record does not disclose that the Hearing Officer was biased or that the determination flowed from any alleged bias (see e.g. Matter of Swinton v. Venettozzi, 164 A.D.3d 1584, 1585, 81 N.Y.S.3d 918 [2018] ).  Petitioner's remaining claims have been examined and, to the extent that they are preserved, we find that they lack merit.

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

Egan Jr., J.P., Clark, Devine, Rumsey and Pritzker, JJ., concur.