CHRISTOPHER TUSKUSKY v. DEPARTMENT OF CORRECTIONS TRAINING ACADEMY

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(NOTE: The status of this decision is published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0910-06T20910-06T2

CHRISTOPHER TUSKUSKY,

Appellant,

v.

DEPARTMENT OF CORRECTIONS TRAINING

ACADEMY,

Respondent.

________________________________


Submitted October 29, 2007 Decided

Before Judges Parrillo and Alvarez.

On appeal from a Final Decision of the Police Training Commission, OAL Docket No. PTC 00858-04.

Jack Venturi & Associates, attorneys for appellant (Jef Henninger, on the brief).

Anne Milgram, Attorney General, attorney for respondent, New Jersey Department of Corrections (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Betty M. Ng, Deputy Attorney General, on the brief).

Anne Milgram, Attorney General, attorney for respondent, Police Training Commission (Dermot P. O'Grady, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner, Christopher Tuskusky, appeals from an August 24, 2006 final decision of the Police Training Commission (Commission) dismissing him from the basic course offered at the Department of Corrections Training Academy (Academy). We affirm.

After a somewhat tortured procedural history, the matter was transmitted to the Office of Administrative Law for hearing on a remand order. The Administrative Law Judge (ALJ) on July 20, 2006, issued an initial decision affirming the dismissal, as he found that the chain of custody as to the petitioner's test sample, which was found to be positive for cocaine, was reliable. He also found that the Academy's destruction of a second sample fell within agency guidelines, and was therefore not in violation of due process. On August 24, 2006, the Commission by final decision adopted the ALJ's findings and conclusions of law.

No person is appointed to the position of corrections officer, the job sought by petitioner, until they successfully complete a training course at an approved school. N.J.S.A. 52:17B-68.1(a). The Academy is the approved school for corrections officer trainees. Pursuant to N.J.A.C. 13:1-7.2(a)(19), the Academy is authorized to screen for drug use all participants in the basic training program. The manner in which such testing will be conducted is also codified, N.J.A.C. 13:1-7.2(a)(19)(i). The director of the Academy must dismiss any trainee who tests positive for illegal drugs, as did the petitioner, N.J.A.C. 13:1-7.2(a)(19)(ii).

The facts are essentially undisputed. Petitioner was dismissed from the Academy on June 27, 2002, as a result of the positive urine sample which was collected on June 17, 2002. When the sample was taken, a second urine specimen, or "split sample," was also collected. Like all the trainees, petitioner was given a label that he completed and affixed to the specimen container. As instructed, petitioner placed his social security number on the label in addition to other identifying information. He voided into the bottle which he had labeled and returned the sealed container, along with the appropriate paperwork, to a designated officer. The bottle is then checked for leakage, and stored in a secure location. All samples are collected from this secure location and delivered to the State lab. On that particular day, the samples were delivered but the officers assigned to the task failed to obtain a receipt from the lab. Hence, petitioner's chain of custody argument, as there is no documentation in the Academy's possession to verify delivery of the sample to the lab.

When the samples are received by the State lab, they are examined to ensure the container is properly sealed, and has not been tampered with or been damaged. Next, the individual's social security number, the date and time of submission, and the name of the person who accepted the specimen for testing, are entered into a computer database and the sample is assigned a lab "tox" number. A special tool is used by the lab technician to cut the top off the bottle so the contents can be tested. The lab uses a two-step process in its analysis. First, an initial screening test is conducted. Should cocaine metabolites be found, as were in this case, a report is generated. The machine that performs the initial screening is automated and checked daily for accuracy. Second, the sample is submitted to a gas chromatography/mass spectrophotometry (GC/MS) test, a definitive test for cocaine. For this test, additional fluid is removed from the collection bottle. A control sample is then taken to confirm the original screening. The sample result is reviewed by a medical review officer not affiliated with the State lab. At the administrative hearing, records were admitted into evidence verifying these standard procedures were employed in testing petitioner's sample.

Petitioner was dismissed on June 27, 2002, ten days after his sample was collected. On July 23, 2002, his attorney notified the Commission that the dismissal was being appealed and he requested discovery. A second letter, which included a request that the split sample be made available for testing by an independent laboratory, was sent to the Commission on August 19, 2002. On August 23, 2002, upon being informed that the correct agency from which to obtain the split sample was the Academy and not the Commission, the attorney requested the split sample and discovery from the Academy. This request came approximately sixty-seven days after collection of the sample. By letter dated September 29, 2003, petitioner was notified that in accord with its sixty-day retention policy, the Academy had destroyed the split sample.

Petitioner adamantly denies ever consuming drugs and contends that his due process rights were violated by the destruction of the split sample. He contends that testing by an independent laboratory would have found it to be negative for cocaine. In reliance on George v. City of Newark, 384 N.J. Super. 232 (App. Div. 2006), the ALJ, however, concluded that the destruction of the split sample did not violate plaintiff's due process rights.

As set forth in George, where there has been "'destruction of physical evidence[]' our courts focus on three factors to determine whether a due process violation has occurred." Id. at 243 (quoting State v. Dreher, 302 N.J. Super. 408, 483 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed.2d 723 (1998)). The factors are: bad faith on the part of the government, the materiality of the evidence to the defense, and the prejudice resulting from its destruction. Ibid. (citing Dreher, supra, 302 N.J. Super. at 483).

Where, as in this instance, the split sample is "merely potentially exculpatory," it is imperative that bad faith be established on the part of the agency. Ibid. (citing State v. Ruffin, 371 N.J. Super. 371, 392 (App. Div. 2004)). In an ideal world, better communication would have occurred intra-agency and the sample would have been preserved. In reality, however, the wrong agency was asked for the split sample within the sixty-day retention period. It was only after that time frame lapsed that petitioner notified the correct agency of his request. This sequence of events is not equivalent to bad faith.

The split sample was obviously material to an appeal of the dismissal. But when bad faith is absent, relief should be granted only if "'there is a showing of manifest prejudice or harm.'" Ibid. (quoting Dreher, supra, 302 N.J. Super. at 489).

Here, petitioner falls short. There was substantial testimony in the record as to the reliability of both tests to which the sample was subjected. There is no evidence of any false-positive rate associated with the GC/MS test. See id. at 244 (explaining that without evidence of false-positive results with GC/MS testing it is difficult to show a defendant was prejudiced without a split sample). Since the test outcome is trustworthy, loss of the split sample does not prejudice the petitioner.

Despite its destruction, petitioner was able to pursue an appeal of his dismissal and a full hearing was conducted thereon. Therefore, the ALJ correctly concluded, in accordance with George, supra, 384 N.J. at 243-45, that the unavailability of the split sample did not constitute a denial of due process of law.

Petitioner also challenges the admissibility of the test results based on the allegedly flawed chain of custody. The determination of whether the chain of custody of a urine sample has been sufficiently established to justify admission of test results is one left to the discretion of the trier of fact. In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001). Test results "should be admitted if there is a 'reasonable probability that the evidence has not been changed in important respects.'" Id. at 565-66 (quoting State v. Brunson, 132 N.J. 377, 393-94 (1993)). "[I]t is not necessary for the party introducing such evidence 'to negate every possibility of substitution.'" Id. at 566 (quoting State v. Brown, 99 N.J. Super. 22, 28 (App. Div.), certif. denied, 51 N.J. 468 (1968)). In administrative proceedings where more relaxed rules of admissibility of evidence apply, the standard is even more generous. Ibid.


The ALJ determined, and we agree, that the Academy established an uninterrupted chain of custody of petitioner's urine sample despite the failure of its personnel to obtain a receipt when delivery was made to the lab. The paperwork completed by petitioner identifying his sample was assigned a number at the lab's door. The documentation bearing the lab number accompanied the sample at every phase of testing. "An appellate court's review of an administrative agency's findings of fact is limited to a determination of whether those findings are supported by 'sufficient credible evidence in the record.'" Id. at 564-65 (quoting In re Taylor, 158 N.J. 644, 657 (1999)). The decision by the Commission to adopt the ALJ's findings is not "arbitrary, capricious, unreasonable, or violative of expressed or implicit legislative policies." George, supra, 384 N.J. Super. at 238 (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Affirmed.

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A-0910-06T2

January 15, 2008