IN RE: Anthony UTTINGER

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

IN RE: Anthony UTTINGER, Petitioner, v. Glenn GOORD, as Commissioner of the New York State Department of Correctional Services, Respondent.

Decided: June 28, 2001

Before:  CARDONA, P.J., PETERS, SPAIN, MUGGLIN and ROSE, JJ. Anthony Uttinger, Attica, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

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 which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the use of controlled substances after a sample of his urine twice tested positive for the presence of opiates.   To the extent that petitioner raises a substantial evidence issue herein, we find that the misbehavior report, together with the positive results of the urinalysis tests and the testimony adduced at the hearing, constitute substantial evidence to support the charge of drug use (see, Matter of Harris v. Goord, 273 A.D.2d 599, 710 N.Y.S.2d 550, lv. dismissed 95 N.Y.2d 917, 719 N.Y.S.2d 645, 742 N.E.2d 120).   Moreover, contrary to petitioner's contention, the chain of custody for petitioner's urine sample was sufficiently documented and a proper foundation was laid for the Hearing Officer's reliance on the positive test results (see, Matter of Perez v. Goord, 274 A.D.2d 706, 711 N.Y.S.2d 217;  Matter of Harris v. Goord, supra).   Any minor clerical errors on the forms were sufficiently explained during the hearing (see, Matter of Garcia v. Goord, 272 A.D.2d 694, 709 N.Y.S.2d 452;  Matter of Foust v. Goord, 262 A.D.2d 904, 694 N.Y.S.2d 489).   Finally, the record is devoid of any indication that the Hearing Officer was biased or that the outcome of the hearing flowed from any such bias (see, Matter of Harris v. Goord, 268 A.D.2d 933, 702 N.Y.S.2d 676).   Petitioner's remaining contentions, to the extent preserved, have been examined and found to be without merit.

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

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