Opinion
03-16-2017
In the Matter of Normond GAINEY, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Normond Gainey, Altona, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Normond Gainey, Altona, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), 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 finding petitioner guilty of violating a prison disciplinary rule.
Based upon confidential information regarding his possible drug use, petitioner was ordered to submit to a urinalysis test, which twice tested positive for the presence of synthetic marihuana. As a result, petitioner was charged in a misbehavior report with being under the influence of an intoxicant and, following a tier III disciplinary hearing, was found guilty as charged. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, drug test results, related documentation and the hearing testimony provide substantial evidence to support the finding of guilt (see Matter of Hines v. Venettozzi, 142 A.D.3d 1219, 1220, 37 N.Y.S.3d 461 [2016] ; Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513 [2016] ). Contrary to petitioner's contention, the record establishes that the correction officer who performed the urinalysis tests was properly trained and certified to use the testing device (see Matter of Hill v. Smith, 73 A.D.3d 1418, 1419, 904 N.Y.S.2d 231 [2010] ). Furthermore, the reliability of the test results was established through documentary evidence and hearing testimony as to the chain of custody and the adherence to proper testing procedures (see Matter of Shepherd v. Annucci, 142 A.D.3d 1244, 1244, 38 N.Y.S.3d 628 [2016], lv. denied 28 N.Y.3d 914, 2017 WL 525381 [2017]; Matter of Belle v. Prack, 140 A.D.3d at 1510, 35 N.Y.S.3d 513 ).
We are unpersuaded by petitioner's contention that he was improperly charged with the use of an intoxicant as we have previously recognized that rule 113.13 is applicable in situations involving synthetic marihuana (see Matter of Streeter v. Annucci, 145 A.D.3d 1300, 1301, 44 N.Y.S.3d 242 [2016] ; Matter of Rivera v. Venettozzi, 138 A.D.3d 1293, 1294, 31 N.Y.S.3d 225 [2016] ). Petitioner's remaining contentions, to the extent that they are preserved for our review, are without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., McCARTHY, LYNCH, ROSE and CLARK, JJ., concur.