State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 10, 2016 522502 

________________________________

In the Matter of QUINCY WADE, 

Petitioner,

v

ANTHONY J. ANNUCCI, as Acting MEMORANDUM AND JUDGMENT

Commissioner of Corrections

and Community Supervision, 

Respondent.

________________________________

Calendar Date: September 20, 2016

Before: Peters, P.J., McCarthy, Garry, Egan Jr. and Lynch, JJ.

__________

Quincy Wade, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondent. 

__________

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 respondent finding petitioner guilty of

violating a prison disciplinary rule. 

Petitioner was ordered to submit a urine specimen for

testing, and it twice tested positive for the presence of

opiates. As a result, he was charged in a misbehavior report

with use of a controlled substance. Following a tier III

disciplinary hearing, petitioner was found guilty of the charge,

and that determination was affirmed upon administrative appeal

with modified penalties. This CPLR article 78 proceeding ensued. 

We confirm. The misbehavior report, positive drug test

results, related documentation and the hearing testimony provide
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substantial evidence to support the determination finding

petitioner guilty of using a controlled substance (see Matter of

Martinez v Annucci, 134 AD3d 1380, 1380 [2015]; Matter of Green v

Annucci, 134 AD3d 1376, 1376 [2015]). Petitioner's denial that

he used a controlled substance and that the specimen was from

another inmate presented credibility issues for resolution by the

Hearing Officer (see Matter of Belle v Prack, 140 AD3d 1509, 1510

[2016]; Matter of Green v Annucci, 134 AD3d at 1377). Contrary

to petitioner's contention, the chain of custody of the specimen

was adequately established through the information contained on

the request for urinalysis form and the testimony of the

correction officer who collected and tested the specimen (see

Matter of Martinez v Annucci, 134 AD3d at 1381; Matter of Roman v

Prack, 133 AD3d 959, 960 [2015]; see also 7 NYCRR 1020.5 [a]). 

Furthermore, the record demonstrates that petitioner was provided

with all of the urinalysis testing documentation mandated by the

pertinent regulations (see 7 NYCRR 1020.4 [f] [1] [iv]; 1020.5

[a]) and that, consequently, a proper foundation was laid for the

admission of the positive test results (see Matter of Paddyfote v

Fischer, 118 AD3d 1240, 1241 [2014]; Matter of Neil v Fischer, 89

AD3d 1308, 1309 [2011], lv denied 18 NY3d 807 [2012]). 

Petitioner's claim that he was denied adequate assistance

because he was not provided with documentation that he requested

is without merit, as the record establishes that petitioner was

provided with copies of relevant documentation and afforded an

opportunity to review the instruction manual for the testing

equipment (see Matter of Smith v Prack, 138 AD3d 1286, 1287

[2016]; Matter of Jenkins v Annucci, 136 AD3d 1093, 1094 [2016]);

in any event, petitioner has not demonstrated that he was

prejudiced (see Matter of McMaster v Annucci, 138 AD3d 1289, 1290

[2016], lv denied 28 NY3d 902 [2016]). Nor are we persuaded that

petitioner was denied a fair and impartial hearing as there is no

indication that the Hearing Officer was biased or that the

determination flowed from any alleged bias (see Matter of

Mullamphy v Fischer, 112 AD3d 1177, 1177 [2013]; Matter of

Boatwright v McGinnis, 24 AD3d 1136, 1137 [2005]). Petitioner's

remaining claims are either unpreserved or without merit. 

Peters, P.J., McCarthy, Garry, Egan Jr. and Lynch, JJ.,

concur.
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed. 

ENTER:

Robert D. Mayberger

Clerk of the Court