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IN THE MATTER OF EUGENE LORINO, Petitioner, v. ROBERT J. MURPHY, as ACTING DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, Respondent.

MEMORANDUM AND JUDGMENT

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits the unauthorized use of a controlled substance after two urinalysis tests produced positive results for opiates. Initially, we note that by failing to raise any objection at the hearing, petitioner failed to preserve for our review his challenge to the introduction into evidence of the drug test results (see Matter of McDermott v. Selsky, 288 A.D.2d 669). In any event, the testing documentation indicating that appropriate testing procedures were followed was sufficient to establish the required proper foundation for reliance on the positive test results (see Matter of Rowe v. Goord, 289 A.D.2d 764). These test results, together with the misbehavior report and testimony at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Valerio v. Selsky, 306 A.D.2d 713; Matter of Springs v. Murphy, 283 A.D.2d 697). Although petitioner was taking prescription medication, the facility pharmacist refuted petitioner's claims that such medication would cause a false positive (see Matter of Jimenez v. Goord, 278 A.D.2d 577). Petitioner's remaining contentions, that he was denied the right to call a witness and the Hearing Officer was improperly appointed, have been reviewed and found to be without merit.

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur.

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

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LORINO v. MURPHY
(Oct 23, 2003)