IN RE: Lance BOOKER (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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

After petitioner's urine twice tested positive for the presence of opioids and THC, petitioner was charged in a misbehavior report with using a controlled substance.  Following a tier III disciplinary hearing, petitioner was found guilty of the charge, 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.

To the extent that petitioner argues this point, we find that the misbehavior report, hearing testimony and testing documentation constitute substantial evidence to support the finding of guilt (see Matter of Harrison v. Venettozzi, 177 A.D.3d 1071, 1071, 109 N.Y.S.3d 914 [2019];  Matter of Rahman v. Annucci, 172 A.D.3d 1810, 1810, 100 N.Y.S.3d 781 [2019] ).  As for petitioner's chain of custody argument, the record reflects that petitioner's urine sample was obtained at approximately 9:50 a.m. on January 23, 2018 and placed in a secure freezer at approximately 12:15 p.m. that same day, where it remained until it was tested on January 30, 2018.  The correction officer who obtained the sample testified that, during the approximately 21/212 hours that elapsed between the time that the sample was obtained and frozen, the sample was secured in a locked office to which he was the only correction officer who had a key.  Nothing in the record suggests that the failure to immediately refrigerate and/or freeze petitioner's urine sample resulted in a false positive (see Matter of Hyzer v. Fischer, 104 A.D.3d 983, 983, 960 N.Y.S.2d 275 [2013];  Matter of Peterson v. Goord, 268 A.D.2d 739, 739, 701 N.Y.S.2d 488 [2000] ), and, in view of the correction officer's testimony and the corresponding entries on the chain of custody form, the record supports the Hearing Officer's conclusion that petitioner's sample was “maintained in a secure location at all times” (Matter of Odome v. Goord, 8 A.D.3d 921, 922, 779 N.Y.S.2d 603 [2004];  see Matter of Ellison v. Goord, 274 A.D.2d 800, 801, 711 N.Y.S.2d 573 [2000];  Matter of Peterson v. Goord, 268 A.D.2d at 739, 701 N.Y.S.2d 488;  see also Matter of Cobb v. Yelich, 118 A.D.3d 1235, 1236, 988 N.Y.S.2d 297 [2014];  Matter of Polite v. Goord, 22 A.D.3d 1000, 1001, 802 N.Y.S.2d 387 [2005] ).  Petitioner's remaining claims have been examined and found to be lacking in merit.  Accordingly, the underlying determination is confirmed.

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

Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ., concur.