IN RE: Dwayne WHITE

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Dwayne WHITE, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: September 21, 2006

Before:  CARDONA, P.J., MERCURE, SPAIN, MUGGLIN and KANE, JJ. Dwayne White, Malone, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following an investigation, petitioner was asked to submit a urine sample.   After the urine sample twice tested positive for the presence of cannabinoids, petitioner was charged in a misbehavior report with violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance.   Petitioner was found guilty following a disciplinary hearing and the determination was affirmed upon administrative appeal.   This proceeding ensued.

The misbehavior report, accompanied by the positive test result and the testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Pollard v. Goord, 18 A.D.3d 1041, 1042, 794 N.Y.S.2d 739 [2005];  Matter of Zippo v. Goord, 2 A.D.3d 1006, 1006, 768 N.Y.S.2d 406 [2003] ).   Contrary to petitioner's contention, the request for urinalysis test form and testimony from the correction officer who collected, tested and destroyed the sample establish a secure chain of custody and that proper testing procedures were followed (see 7 NYCRR 1020.4[e];  Matter of Burgos-Morales v. Goord, 22 A.D.3d 999, 1000, 802 N.Y.S.2d 388 [2005];  Matter of Ranson v. Selsky, 22 A.D.3d 935, 935-936, 802 N.Y.S.2d 277 [2005] ).   Petitioner's remaining contentions, including that he was denied relevant documentary evidence and that the hearing transcript was inadequate for meaningful review, are either unpreserved or have been determined to be without merit.

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

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