IN RE: Christina M. FINNEGAN (2020)

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 respondent Superintendent of Bedford Hills Correctional Facility finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with drug use after her urine sample twice tested positive for the presence of opiates.  Following a tier II disciplinary hearing, petitioner was found guilty as charged, and the determination was upheld on administrative review.¹  This CPLR article 78 proceeding ensued.

We confirm.  The misbehavior report, positive test results and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Rahman v. Annucci, 172 A.D.3d 1810, 1810, 100 N.Y.S.3d 781 [2019];  Matter of McKanney v. Annucci, 170 A.D.3d 1354, 1354, 95 N.Y.S.3d 652 [2019] ).  Contrary to petitioner's contention, the correction officer explained that the one-minute time discrepancy between the misbehavior report and the request for urinalysis form, both authored by the officer, as to when the urine sample was tested was a clerical error and, as such, it does not compromise the chain of custody or invalidate the test results (see Matter of Garcia v. Fischer, 68 A.D.3d 1311, 1312, 890 N.Y.S.2d 201 [2009];  Matter of Taylor v. Taylor, 290 A.D.2d 778, 778, 736 N.Y.S.2d 202 [2002];  Matter of Amante v. Goord, 240 A.D.2d 837, 837, 659 N.Y.S.2d 809 [1997] ).  The correction officer also adequately explained the gap of time between when the sample was removed from the locked urine box and when the two tests were performed (see Matter of Buggsward v. Rodriguez, 160 A.D.3d 1320, 1321, 75 N.Y.S.3d 349 [2018] ).  Accordingly, we are unpersuaded by petitioner's argument, to the extent preserved for our review,² that the validity of the test results was undermined by certain alleged deficiencies in the chain of custody (see Matter of Hall v. Venettozzi, 98 A.D.3d 773, 773, 949 N.Y.S.2d 299 [2012];  Matter of Faraldo v. Bezio, 93 A.D.3d 1007, 1008, 939 N.Y.S.2d 893 [2012] ).

Petitioner's remaining claims have been considered and found to be without merit.

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

FOOTNOTES

1.   The penalty was subsequently modified.

2.   By not raising it at the hearing, when it could have been addressed by the correction officer, petitioner failed to preserve that aspect of her chain of custody argument challenging an additional alleged time discrepancy – that being the time at which the specimen was secured in the lock box (see Matter of Coates v. Fischer, 108 A.D.3d 997, 998, 969 N.Y.S.2d 254 [2013] ).

Lynch, J.P., Clark, Mulvey, Devine and Aarons, JJ., concur.