Matter of Roman

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Third DepartmentSep 17, 1998
253 A.D.2d 975 (N.Y. App. Div. 1998)
253 A.D.2d 975679 N.Y.S.2d 426

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September 17, 1998

Petitioner was found guilty of violating the prison disciplinary rule which prohibits inmates from using unauthorized controlled substances after two urinalysis tests yielded positive results for the presence of opiates. Contrary to petitioner's contention, the record establishes that Correction Officer Sean Barber, who authored the misbehavior report, was certified to perform the urinalysis tests and followed appropriate testing procedures. Furthermore, in view of Barber's testimony that he obtained petitioner's urine specimen and that it never left his presence, we reject petitioner's challenge to the sufficiency of the chain of custody, particularly as there is no evidence showing that the specimen could have been tampered with or confused with other samples ( see, Matter of Gatson v. Selsky, 220 A.D.2d 906). To the extent that petitioner presented testimony and evidence to the contrary, this merely presented a credibility issue for the Hearing Officer to resolve ( see, Matter of Symmonds v. Goord, 244 A.D.2d 737). Petitioner's claim that respondents failed to follow their own regulations and rules in conducting the tests lacks merit as it is based on a procedure that is not required to be performed under the current directive. Therefore, taking into account the misbehavior report and positive test results, along with the correction officers' testimony, we conclude that substantial evidence supports the determination of petitioner's guilt ( see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 143; Matter of Sanatana v. Goord, 239 A.D.2d 695, 696).

Crew III, J.P., White, Yesawich Jr., Carpinello and Graffeo, JJ., concur.

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