positive NIK test in New York

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]).

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]).

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]).

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]).

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]).

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]).

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]).

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]).

2006Nevertheless, because a loss of good time was imposed as part of the penalty and the smuggling charge must now be dismissed, we remit the matter for a redetermination of the penalty on the remaining violations (see Matter of Williams v Goord, 28 AD3d 897, 898 [2006]).

2006The remaining charges are supported by substantial evidence consisting of the misbehavior report and testimony of its author, who witnessed the drugs fall from petitioner’s person during the frisk, as well as the positive NIK test results (see Matter of Williams v Goord, 301 AD2d 983, 984 [2003]; Matter of Matos v Goord, 300 AD2d 970, 970 [2002], lv denied 99 NY2d 509 [2003]).

2006The remaining charges are supported by substantial evidence consisting of the misbehavior report and testimony of its author, who witnessed the drugs fall from petitioner’s person during the frisk, as well as the positive NIK test results (see Matter of Williams v Goord, 301 AD2d 983, 984 [2003]; Matter of Matos v Goord, 300 AD2d 970, 970 [2002], lv denied 99 NY2d 509 [2003]).

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]).

2003Further, in light of petitioner’s three prior drug-related disciplinary violations, the penalty for the instant violation, namely, nine months in the special housing unit, one year loss of good time and one year loss of privileges, was not “so harsh as to shock one’s sense of fairness” (Matter of Britt v New York State Dept. of Corrections, 283 AD2d 751, 751 [2001]; see Matter of Kelley v Goord, 274 AD2d 705 [2000], lv denied 95 NY2d 768 [2000]).

2003Further, in light of petitioner’s three prior drug-related disciplinary violations, the penalty for the instant violation, namely, nine months in the special housing unit, one year loss of good time and one year loss of privileges, was not “so harsh as to shock one’s sense of fairness” (Matter of Britt v New York State Dept. of Corrections, 283 AD2d 751, 751 [2001]; see Matter of Kelley v Goord, 274 AD2d 705 [2000], lv denied 95 NY2d 768 [2000]).

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]).