Matter of Johnson v Fischer

Matter of Matter of Johnson v Fischer 2012 NY Slip Op 07730 Decided on November 15, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 15, 2012
512686

[*1]In the Matter of MARK JOHNSON, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: September 26, 2012
Before: Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Egan Jr., JJ.


Mark Johnson, Gowanda, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Marcus J. Mastracco of counsel), for respondent.


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 which found petitioner guilty of violating a prison disciplinary rule.

After a sample of his urine twice tested positive for the presence of opiates, petitioner was charged in a misbehavior report with using a controlled substance. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the correction officer who collected and tested the sample, provide substantial evidence supporting the determination of guilt (see Matter of Tucci v Selsky, 94 AD3d 1294, 1294-1295 [2012]; Matter of Curry v Fischer, 93 AD3d 984, 984 [2012]). Contrary to petitioner's claim, the record reveals that the proper chain of custody of the sample was maintained. The testing officer stated that he followed the necessary procedures for handling and testing the sample and explained that he had possession of the sample in the testing room from the time it was taken until it was destroyed, in accordance with the information set forth on the request for urinalysis test form (see Matter of Moss v Prack, 87 AD3d 1255, 1256 [*2][2011]; Matter of Valdez v Fischer, 85 AD3d 1529 [2011], lv denied 17 NY3d 716 [2011]; see also 7 NYCRR 1020.4 [d]). Petitioner's remaining contentions have not been preserved for our review.

Mercure, J.P., Lahtinen, Malone Jr., McCarthy and
Egan Jr., JJ., concur.

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