NIK test in New York

2019Moreover, contrary to petitioner's claim, the regulations governing use of the NARK II test results, like those governing the use of NIK test results, do not require that the substance be tested a second time after an initial positive test result has been obtained ( see 7 NYCRR 1010.8 [c], [d]; Matter of Staine v Fischer , 111 AD3d 999, 1000 [2013]; Matter of Fero v Prack , 108 AD3d 1004, 1005 [2013]).

2017The misbehavior report, positive NIK test results and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination finding petitioner guilty of drug possession (see Matter of Raid v Prack, 140 AD3d 1511, 1511 [2016]; Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2013Further, a second test was not required to confirm the positive NIK test result (see Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]; 7 NYCRR 1010.4 [e]; 1010.8 [c]), which was supported by the visitor’s admission that he was smuggling heroin (see Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]; see also Matter of McKoy v Bezio, 67 AD3d 1232 [2009]).

2019Moreover, contrary to petitioner's claim, the regulations governing use of the NARK II test results, like those governing the use of NIK test results, do not require that the substance be tested a second time after an initial positive test result has been obtained ( see 7 NYCRR 1010.8 [c], [d]; Matter of Staine v Fischer , 111 AD3d 999, 1000 [2013]; Matter of Fero v Prack , 108 AD3d 1004, 1005 [2013]).

2014In any case, the misbehavior report, positive NIK test result for heroin and hearing testimony support the determination of guilt, and we decline petitioner’s invitation to revisit the well-settled proposition that a second test to confirm the positive test result was not required (see Matter of Staine v Fischer, 111 AD3d 999, 1000 [2013]; Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]).

2013Further, a second test was not required to confirm the initial positive NIK test result (see Matter of McKoy v Bezio, 67 AD3d 1232, 1232 [2009]; Matter of Grochulski v Selsky, 305 AD2d 823, 823 [2003]).

2013Further, a second test was not required to confirm the initial positive NIK test result (see Matter of McKoy v Bezio, 67 AD3d 1232, 1232 [2009]; Matter of Grochulski v Selsky, 305 AD2d 823, 823 [2003]).

2013Further, a second test was not required to confirm the initial positive NIK test result (see Matter of McKoy v Bezio, 67 AD3d 1232, 1232 [2009]; Matter of Grochulski v Selsky, 305 AD2d 823, 823 [2003]).

2013Further, a second test was not required to confirm the initial positive NIK test result (see Matter of McKoy v Bezio, 67 AD3d 1232, 1232 [2009]; Matter of Grochulski v Selsky, 305 AD2d 823, 823 [2003]).

2018The misbehavior report, the authoring correction officer's testimony, the positive NIK test results and the related documentary evidence provide substantial evidence to support the determination ( see Matter of Shearer v Annucci , 155 AD3d 1277, 1277 [2017]; Matter of Collins v Annucci , 146 AD3d 1261, 1261 [2017]).

2017With respect to the charge of possessing drugs, the misbehavior report, positive NIK test results and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination of guilt (see Matter of Collins v Annucci, 146 AD3d 1261, 1261 [2017]; Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]).

2013Despite petitioner’s contention that the request for test form was not properly completed, our review indicates that the information included on the form, together with the hearing testimony, satisfied the regulatory requirements (see 7 NYCRR 1010.4 [b]) and established an unbroken chain of custody of the contraband (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]; Matter of Quinones v Fischer, 67 AD3d 1285, 1286 [2009]; Matter of Oms v Goord, 36 AD3d 1105, 1106 [2007], lv denied 8 NY3d 811 [2007]).

2013Despite petitioner’s contention that the request for test form was not properly completed, our review indicates that the information included on the form, together with the hearing testimony, satisfied the regulatory requirements (see 7 NYCRR 1010.4 [b]) and established an unbroken chain of custody of the contraband (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]; Matter of Quinones v Fischer, 67 AD3d 1285, 1286 [2009]; Matter of Oms v Goord, 36 AD3d 1105, 1106 [2007], lv denied 8 NY3d 811 [2007]).

2013The misbehavior report, the positive NIK test results and related documentation, and the hearing testimony constitute substantial evidence supporting the finding of guilt (see Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]; Matter of Hughes v Bezio, 84 AD3d 1598, 1598 [2011]).

2013The misbehavior report, the positive NIK test results and related documentation, and the hearing testimony constitute substantial evidence supporting the finding of guilt (see Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]; Matter of Hughes v Bezio, 84 AD3d 1598, 1598 [2011]).

2013Despite petitioner’s contention that the request for test form was not properly completed, our review indicates that the information included on the form, together with the hearing testimony, satisfied the regulatory requirements (see 7 NYCRR 1010.4 [b]) and established an unbroken chain of custody of the contraband (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]; Matter of Quinones v Fischer, 67 AD3d 1285, 1286 [2009]; Matter of Oms v Goord, 36 AD3d 1105, 1106 [2007], lv denied 8 NY3d 811 [2007]).

2013Despite petitioner’s contention that the request for test form was not properly completed, our review indicates that the information included on the form, together with the hearing testimony, satisfied the regulatory requirements (see 7 NYCRR 1010.4 [b]) and established an unbroken chain of custody of the contraband (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]; Matter of Quinones v Fischer, 67 AD3d 1285, 1286 [2009]; Matter of Oms v Goord, 36 AD3d 1105, 1106 [2007], lv denied 8 NY3d 811 [2007]).

2013The misbehavior report, the positive NIK test results and related documentation, and the hearing testimony constitute substantial evidence supporting the finding of guilt (see Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]; Matter of Hughes v Bezio, 84 AD3d 1598, 1598 [2011]).

2013The misbehavior report, the positive NIK test results and related documentation, and the hearing testimony constitute substantial evidence supporting the finding of guilt (see Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]; Matter of Hughes v Bezio, 84 AD3d 1598, 1598 [2011]).

2013Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Lamage v Fischer, 100 AD3d 1176, 1177 [2012]).

2013Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Lamage v Fischer, 100 AD3d 1176, 1177 [2012]).

2013Despite petitioner’s contention that the request for test form was not properly completed, our review indicates that the information included on the form, together with the hearing testimony, satisfied the regulatory requirements (see 7 NYCRR 1010.4 [b]) and established an unbroken chain of custody of the contraband (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]; Matter of Quinones v Fischer, 67 AD3d 1285, 1286 [2009]; Matter of Oms v Goord, 36 AD3d 1105, 1106 [2007], lv denied 8 NY3d 811 [2007]).

2013Despite petitioner’s contention that the request for test form was not properly completed, our review indicates that the information included on the form, together with the hearing testimony, satisfied the regulatory requirements (see 7 NYCRR 1010.4 [b]) and established an unbroken chain of custody of the contraband (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]; Matter of Quinones v Fischer, 67 AD3d 1285, 1286 [2009]; Matter of Oms v Goord, 36 AD3d 1105, 1106 [2007], lv denied 8 NY3d 811 [2007]).

2010Accordingly, the determination finding petitioner guilty of possessing marihuana was not supported by substantial evidence and, therefore, must be annulled (see Matter of Gonzalez v Selsky, 23 AD3d 724, 725 [2005]; Matter of Hernandez v Selsky, 306 AD2d 595, 596 [2003], lv denied 100 NY2d 514 [2003]; Matter of Davis v McClellan, 202 AD2d 770, 770-771 [1994], compare Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]).

2009To the extent that petitioner raises the issue of substantial evidence, we conclude that the misbehavior report, positive test results and the hearing testimony were sufficient to support the determination of guilt (see Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]; Matter of Hall v Selsky, 52 AD3d 1078, 1078 [2008]).

2009Contrary to petitioner’s contention, multiple tests on the substances recovered did not have to be performed to confirm the initial positive NIK test results (see Matter of Grochulski v Selsky, 305 AD2d 823, 823 [2003]; Matter of Cliff v Kingsley, 293 AD2d 954, 954 [2002]; Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]).

2003Despite petitioner’s claims to the contrary, the misbehavior report properly set out the date, time and place of the incident as required by 7 NYCRR 251-3.1 (c) (3), a proper chain of custody was established (see Matter of Knight v Selsky, 297 AD2d 845, 846 [2002]; Matter of Smart v Goord, 266 AD2d 606, 607 [1999]) and multiple tests were not required to confirm the initial positive NIK test result (see Matter of Cliff v Kingsley, 293 AD2d 954, 954 [2002]; Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]).

2004It further held “that a Scott-Reagent field test (NIK test) indicating the presence of cocaine in the powder allegedly sold by the defendant is not legally sufficient evidence to withstand a motion for a trial order of dismissal at the conclusion of the People’s case (see, CPL 290.10 [1]; People v Swamp, [ 84 NY2d 725 ]; see also, People v Kenny, supra; People v Branton, 67 AD2d 664 [2d Dept 1979]; People v Miller, 57 AD2d 668 [3d Dept 1977])” (at 473).

2001This court further holds and determines that a Scott-Reagent field test (NIK test) indicating the presence of cocaine in the powder allegedly sold by the defendant is not legally sufficient evidence to withstand a motion for a trial order of dismissal at the conclusion of the People’s case (see, CPL 290.10 [1]; People v Swamp, supra; see also, People v Kenny, supra; People v Branton, 67 AD2d 664 [2d Dept 1979]; People v Miller, 57 AD2d 668 [3d Dept 1977]).

2018The misbehavior report, the authoring correction officer's testimony, the positive NIK test results and the related documentary evidence provide substantial evidence to support the determination ( see Matter of Shearer v Annucci , 155 AD3d 1277, 1277 [2017]; Matter of Collins v Annucci , 146 AD3d 1261, 1261 [2017]).

2017The misbehavior report, the positive NIK test results and related documentation constitute substantial evidence supporting the determination of guilt (see Matter of Mitchell v Department of Corr. & Community Supervision, 147 AD3d 1135, 1136 [2017]; Matter of Torres v Selsky, 8 AD3d 775, 776 [2004]).

2017Contrary to petitioner’s claim, there was an adequate foundation laid for the admission of the positive test results as the testimony of the testing officer and information provided in the request for test of controlled substance form established that an unbroken chain of custody was maintained in which the only person who handled the substance signed the form (see 7 NYCRR 1010.4 [b]; Matter of Miller v Annucci, 131 AD3d 1304, 1305 [2015]; Matter of Fero v Prack, 108 AD3d at 1005 ).

2017The misbehavior report, positive NIK test results and related documentation, together with the hearing testimony, provide substantial evidence supporting the determination finding petitioner guilty of drug possession (see Matter of Raid v Prack, 140 AD3d 1511, 1511 [2016]; Matter of Fero v Prack, 108 AD3d 1004, 1005 [2013]).

2017The misbehavior report, the positive NIK test results and related documentation constitute substantial evidence supporting the determination of guilt (see Matter of Mitchell v Department of Corr. & Community Supervision, 147 AD3d 1135, 1136 [2017]; Matter of Torres v Selsky, 8 AD3d 775, 776 [2004]).

2010Accordingly, the determination finding petitioner guilty of possessing marihuana was not supported by substantial evidence and, therefore, must be annulled (see Matter of Gonzalez v Selsky, 23 AD3d 724, 725 [2005]; Matter of Hernandez v Selsky, 306 AD2d 595, 596 [2003], lv denied 100 NY2d 514 [2003]; Matter of Davis v McClellan, 202 AD2d 770, 770-771 [1994], compare Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]).

2010Accordingly, the determination finding petitioner guilty of possessing marihuana was not supported by substantial evidence and, therefore, must be annulled (see Matter of Gonzalez v Selsky, 23 AD3d 724, 725 [2005]; Matter of Hernandez v Selsky, 306 AD2d 595, 596 [2003], lv denied 100 NY2d 514 [2003]; Matter of Davis v McClellan, 202 AD2d 770, 770-771 [1994], compare Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]).

2010That regulation “outlines the proceedings to be followed by correctional facilities in identifying suspected contraband drugs and in conducting related disciplinary hearings” (Matter of Giannattasio v Coombe, 237 AD2d 287, 288 [1997]).

2010Accordingly, the determination finding petitioner guilty of possessing marihuana was not supported by substantial evidence and, therefore, must be annulled (see Matter of Gonzalez v Selsky, 23 AD3d 724, 725 [2005]; Matter of Hernandez v Selsky, 306 AD2d 595, 596 [2003], lv denied 100 NY2d 514 [2003]; Matter of Davis v McClellan, 202 AD2d 770, 770-771 [1994], compare Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]).

2009To the extent that petitioner raises the issue of substantial evidence, we conclude that the misbehavior report, positive test results and the hearing testimony were sufficient to support the determination of guilt (see Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]; Matter of Hall v Selsky, 52 AD3d 1078, 1078 [2008]).

2009Although the relevant testing forms and documents were not provided to petitioner with the misbehavior report, these documents were given to petitioner at the hearing and the hearing was adjourned to afford petitioner ample time to review them (compare Matter of Dumpson v Goord, 26 AD3d 567, 568 [2006]).