Smith v. Dubray, 58 A.D.3d 968 (N.Y. App. Div. 2009). · Go Syfert
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Smith v. Dubray, 58 A.D.3d 968 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
28 citation events (28 in the last 25 years) across 1 distinct court.
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Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) Henry v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Similarly unpreserved due to his failure to specifically object at the hearing are petitioner’s claims that he was improperly denied a witness (see Matter of Tucci v Selsky, 94 AD3d 1294, 1295 [2012]; Matter of Barclay v Knowles, 79 AD3d 1550, 1551 [2010]), and that he was denied the right to present documentary evidence (see Matter of Knight v Bezio, 82 AD3d 1381, 1382 [2011], lv dismissed 17 NY3d 788 [2011]; Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]).
discussed Cited as authority (rule) MatterofHenryvFischer
N.Y. App. Div. · 2014 · confidence medium
Similarly unpreserved due to his failure to specifically object at the hearing are petitioner's claims that he was improperly denied a witness (see Matter of Tucci v Selsky, 94 AD3d 1294, 1295 [2012]; Matter of Barclay v Knowles, 79 AD3d 1550, 1551 [2010]), and that he was denied the right to present documentary evidence (see Matter of Knight v Bezio, 82 AD3d 1381, 1382 [2011], lv dismissed 17 NY3d 788 [2011]; Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]).
discussed Cited as authority (rule) Henry v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Similarly unpreserved due to his failure to specifically object at the hearing are petitioner’s claims that he was improperly denied a witness (see Matter of Tucci v Selsky, 94 AD3d 1294, 1295 [2012]; Matter of Barclay v Knowles, 79 AD3d 1550, 1551 [2010]), and that he was denied the right to present documentary evidence (see Matter of Knight v Bezio, 82 AD3d 1381, 1382 [2011], lv dismissed 17 NY3d 788 [2011]; Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]).
discussed Cited as authority (rule) Mateos v. Fischer
N.Y. App. Div. · 2013 · confidence medium
The hearing testimony, misbehavior report and positive drug test results provide substantial evidence supporting the determination of guilt (see Matter of Johnson v Fischer, 104 AD3d 1007, 1007 [2013]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Mateos v. Fischer
N.Y. App. Div. · 2013 · confidence medium
The hearing testimony, misbehavior report and positive drug test results provide substantial evidence supporting the determination of guilt (see Matter of Johnson v Fischer, 104 AD3d 1007, 1007 [2013]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Hyzer v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Substantial evidence consisting of the misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the correction officials who authorized, collected and tested the sample, supports the determination of guilt (see Matter of Donahue v Fischer, 98 AD3d 784, 784 [2012]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Hyzer v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Substantial evidence consisting of the misbehavior report, positive urinalysis test results and related documentation, as well as the testimony of the correction officials who authorized, collected and tested the sample, supports the determination of guilt (see Matter of Donahue v Fischer, 98 AD3d 784, 784 [2012]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Smith v. Unger
N.Y. App. Div. · 2012 · confidence medium
The misbehavior report, the positive test results and related documentation and the testimony of the correction officer who conducted the tests provide substantial evidence supporting the determination of guilt (see Curry v Fischer, 93 AD3d 984, 984 [2012]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Smith v. Unger
N.Y. App. Div. · 2012 · confidence medium
The misbehavior report, the positive test results and related documentation and the testimony of the correction officer who conducted the tests provide substantial evidence supporting the determination of guilt (see Curry v Fischer, 93 AD3d 984, 984 [2012]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Curry v. Fischer
N.Y. App. Div. · 2012 · confidence medium
The misbehavior report, together with the positive urinalysis test results, related documentation and hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]).
discussed Cited as authority (rule) Neil v. Fischer
N.Y. App. Div. · 2011 · confidence medium
In view of this, and given that the required testing documentation was provided to petitioner, a proper foundation was laid for the positive test results (see 7 NYCRR 1020.5 [a] [1]; Matter of Karapetian v Fischer, 65 AD3d 772 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]).
discussed Cited as authority (rule) Pujals v. Fischer
N.Y. App. Div. · 2011 · confidence medium
Petitioner’s contention that the misbehavior report was incomplete or contained errors is not preserved for our review inasmuch as he failed to raise these issues at the hearing (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]; Matter of Colon v Goord, 11 AD3d 839, 840 [2004]) and, in any event, is without merit.
discussed Cited as authority (rule) Knight v. Bezio
N.Y. App. Div. · 2011 · confidence medium
Although petitioner further contends that he was improperly denied documentary evidence consisting of a memorandum from the sergeant to her superior, which he asserts was not confidential in nature, he has not preserved this claim due to his failure to object at the hearing (see Matter of Hawkins v Fischer, 72 AD3d 1378, 1379 [2010]; Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]).
discussed Cited as authority (rule) Stanford v. Fischer
N.Y. App. Div. · 2010 · confidence medium
The misbehavior report, positive urinalysis test results and related documentation, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Frye v Commissioner of Correctional Servs., 69 AD3d 1074, 1074 [2010]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]).
discussed Cited as authority (rule) Ortiz v. Fischer
N.Y. App. Div. · 2010 · confidence medium
The misbehavior report, positive test results and testimony of the testing officer, along with petitioner’s admission during the hearing that he smoked marihuana, provide substantial evidence to support the determination (see Matter of Covington v Smith, 63 AD3d 1453, 1454 [2009], lv denied 13 NY3d 709 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Bornstorff v. Bezio
N.Y. App. Div. · 2010 · confidence medium
Finally, contrary to petitioner’s assertion, recalibration of the testing apparatus prior to testing petitioner’s urine a second time was not required (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]).
discussed Cited as authority (rule) Hill v. Smith
N.Y. App. Div. · 2010 · confidence medium
Contrary to petitioner’s contention, neither departmental directives nor the directions for use of the testing apparatus required that it be recalibrated on a fixed schedule (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]).
discussed Cited as authority (rule) White v. Superintendent of Wyoming Correctional Facility
N.Y. App. Div. · 2010 · confidence medium
Petitioner’s contention that the test results were erroneously introduced into evidence because the proper documentation had not been supplied is not preserved for our review, inasmuch as he failed to object to their introduction either at the hearing or on administrative appeal (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]; Matter of Ross v Selsky, 49 AD3d 1065, 1065 [2008]).
discussed Cited as authority (rule) Duffy v. Fischer
N.Y. App. Div. · 2010 · confidence medium
The misbehavior report, together with the positive urinalysis test results and related documentation, as well as the testimony of the correction officer who obtained the urine sample from the hospital nurse and tested it, provide substantial evidence supporting the determination of guilt (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]).
discussed Cited as authority (rule) Vargas v. Bezio
N.Y. App. Div. · 2010 · confidence medium
The misbehavior report, together with the positive urinalysis test results and related documentation, as well as the testimony of the correction officers involved, provide substantial evidence supporting the determination of guilt (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]).
discussed Cited as authority (rule) Giap v. Fischer
N.Y. App. Div. · 2010 · confidence medium
To the extent that petitioner argues that the determination was not supported by substantial evidence, the misbehavior report, positive drug tests and testimony at the hearing substantiated the determination (see Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Smart v. Fischer
N.Y. App. Div. · 2009 · confidence medium
The misbehavior report, the positive test results for the presence of opiates in urine samples taken from petitioner, the supporting documentation and the hearing testimony of the testing officer provide substantial evidence of petitioner’s guilt (see Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]; Matter of Webb v Leclaire, 52 AD3d 1131, 1132 [2008]).
discussed Cited as authority (rule) Perez v. Bezio
N.Y. App. Div. · 2009 · confidence medium
The misbehavior report, hearing testimony and positive test results provide substantial evidence to support the determination of guilt (see Matter of Davis v Prack, 58 AD3d 977, 977 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]).
discussed Cited as authority (rule) Caldwell v. Fischer
N.Y. App. Div. · 2009 · confidence medium
The misbehavior report, supporting documentation and statement by petitioner’s brother provide substantial evidence of petitioner’s guilt (see Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]; Matter of Marino v New York State Dept. of Correctional Servs., 41 AD3d 1004, 1005 [2007], appeal dismissed and lv denied 9 NY3d 940 [2007]).
discussed Cited as authority (rule) Joseph v. Fischer
N.Y. App. Div. · 2009 · confidence medium
The misbehavior report, along with the supporting documentation and hearing testimony of the correction officers involved in the altercation, provide substantial evidence to support the determination (see Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
discussed Cited as authority (rule) Karapetian v. Fischer
N.Y. App. Div. · 2009 · confidence medium
The misbehavior report together with the positive urinalysis test results and supporting documentation, as well as the testimony of the correction officer who performed the urinalysis, provide substantial evidence of petitioner’s guilt (see Matter of Smith v Dubray, 58 AD3d 968, 968 [2009]; Matter of Sierra v Dubray, 58 AD3d 970 [2009]).
discussed Cited as authority (rule) Moore v. Fischer
N.Y. App. Div. · 2009 · confidence medium
We note that this issue was not preserved for our review inasmuch as petitioner failed to challenge the legitimacy of the mail watch during the hearing (see Matter of Smith v Dubray, 58 AD3d 968, 969 [2009]; Matter of Frazier v Artus, 40 AD3d 1288, 1288 [2007]).
discussed Cited as authority (rule) Ellison v. Fischer
N.Y. App. Div. · 2009 · confidence medium
The positive urinalysis results, the misbehavior report and the hearing testimony provide substantial evidence to support the finding of petitioner’s guilt (see Matter of Perretti v Fischer, 58 AD3d 999, 1000 [2009], lv denied 12 NY3d 709 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]).
Retrieving the full opinion text from the archive…
In the Matter of Lamel Smith
v.
Keith Dubray, as Director of Special Housing Unit and Inmate Disciplinary Programs
Appellate Division of the Supreme Court of the State of New York.
Jan 15, 2009.
58 A.D.3d 968
Rose.
Cited by 28 opinions  |  Published
Rose, J.

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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

In May 2007, petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting the use of a controlled substance after a sample of his urine twice tested positive for the presence of cannabinoids. He was found guilty following a tier III disciplinary hearing. After an unsuccessful administrative appeal, he commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, positive urinalysis test results, supporting documentation and the hearing testimony provide substantial evidence of petitioner’s guilt (see Matter of [*969] Webb v Leclaire, 52 AD3d 1131, 1132 [2008]; Matter of Hoover v Goord, 38 AD3d 1069, 1070 [2007], lv denied 8 NY3d 816 [2007]). In addition, the supporting documentation established the proper foundation for the reliance on the positive test results (see 7 NYCRR 1020.5 [a]; Matter of Williams v Selsky, 45 AD3d 1023, 1024 [2007]).

Petitioner contends that the testing officer’s failure to recalibrate the testing apparatus between sample tests rendered the test results unreliable. We disagree. Former 7 NYCRR 1020.4 (e) (1) (iv), which codified Department of Correctional Services directive No. 4937, required that new positive and negative control tests be run prior to a second test on a urine sample. Directive No. 4937 was amended in October 2006, however, specifically removing the requirement to conduct the new control tests prior to testing the second sample due to advanced technology incorporated in the testing equipment.[1] Our review of the record satisfies us that the testing officer was properly trained in the use of the testing apparatus and followed the manufacturer’s recommended operating procedures (see 7 NYCRR 1020.4 [e] [1] [iii]). In light of this, and in the absence of any evidence substantiating petitioner’s claim that the failure to recalibrate caused a false positive test result, we find his claim that the test was unreliable to be without merit.[2]

Moreover, although the testing officer admittedly transcribed an incorrect cutoff calibrator rate on the urinalysis procedure form for the second test, insofar as the accompanying computer printout generated by the testing system reflects that the proper cutoff rate was used, we find that the error did not affect the validity of the test (see Matter of Dalton v Selsky, 6 AD3d 844, 845 [2004]). Finally, as petitioner failed to object at the hearing that he was denied documentary evidence, the issue is not preserved for our review (see Matter of Colon v Goord, 11 AD3d 839, 840 [2004]; Matter of Kilgore v Goord, 273 AD2d 695, 696 [2000]).

Peters, J.E, Spain, Kane and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

1

The regulation was amended, effective March 31, 2008, and the positive and negative control test requirements were deleted (see 7 NYCRR 1020.4 [e] [1] [iv]).

2

Although Directive No. 4937 was not, at the time of petitioner’s hearing, filed as required with the Department of State (see Executive Law § 102), a different result is not required as the testing was done in compliance with 7 NYCRR 1020.4 (e) (1) (iii).