                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     517337
________________________________

In the Matter of JORGE ROSARIO,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   June 9, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Devine and Clark, JJ.

                             __________


     Jorge Rosario, Ossining, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff 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 the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was charged in a misbehavior report with drug
use after his urine twice tested positive for buprenorphine.
Following a tier III disciplinary hearing, he was found guilty as
charged and that determination was upheld upon administrative
appeal. This CPLR article 78 proceeding ensued.
                              -2-                517337

      We confirm. The misbehavior report, the positive
urinalysis test results and related documentation, together with
the testimony of the correction officer who conducted the test,
provide substantial evidence supporting the determination of
guilt (see Matter of Mullamphy v Fischer, 112 AD3d 1177, 1177
[2013]; Matter of Muniz v Fischer, 111 AD3d 1044, 1044 [2013]).
Petitioner maintains that the testing procedure was defective
because an expired "negative calibrator/control" reagent was used
in the second test conducted on his urine. The correction
officer who performed the test testified, however, that he made a
clerical error on the urinalysis procedure form for that test
when he noted the expiration date and that the correct date was
the same as the expiration date noted on the form for the first
test. Our review of the two forms confirms that the reagents for
both tests came from the same lot number, and we conclude that
the officer adequately explained the discrepancy. Accordingly,
the validity of the second test is not undermined (see Matter of
Johnson v Fischer, 104 AD3d 1007, 1007 [2013]). Further,
contrary to petitioner's contention, the record establishes that
he was provided with the requisite paperwork regarding the drug
test with the misbehavior report, including the statement of
scientific principles and validity of the testing apparatus (see
7 NYCRR 1020.4 [f] [1] [iv]). Petitioner's remaining claims have
been considered and found to be without merit.

      Lahtinen, J.P., McCarthy, Rose, Devine and Clark, JJ.,
concur.
                              -3-                  517337

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
