                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                   517822
________________________________

In the Matter of EARL BUSSEY,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
COMMISSIONER OF CORRECTIONS
   AND COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Lahtinen, J.P., McCarthy, Garry, Rose and Lynch, JJ.

                             __________


     Earl Bussey, Coxsackie, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Julie M.
Sheridan 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 which found petitioner
guilty of violating a prison disciplinary rule.

      When all inmates in a section of the prison were subjected
to drug testing, petitioner submitted a urine sample that
appeared to be water. A second urine sample was accordingly
collected from him (see 7 NYCRR 1020.4 [a] [1]), which twice
tested positive for marihuana. Petitioner was charged in a
misbehavior report with drug use and, following a tier III
disciplinary hearing, was found guilty as charged. The
determination was affirmed upon administrative review, prompting
this CPLR article 78 proceeding.
                              -2-                  517822

      We confirm. The hearing testimony, misbehavior report and
positive drug test results provide substantial evidence to
support the determination of guilt (see Matter of Creamer v
Venettozzi, 117 AD3d 1254, 1254-1255 [2014]; Matter of Mateos v
Fischer, 110 AD3d 1127, 1128 [2013]). The request for urinalysis
form and testimony of the correction officers involved
established that there was an unbroken chain of custody over the
sample and that, contrary to petitioner's contention, the sample
could not have been mistaken for another inmate's or tampered
with (see Matter of Roman v Selsky, 253 AD2d 975, 975-976
[1998]). The sample was further refrigerated as required, and
the record demonstrates that the failure to freeze it as
"recommended" did not increase the possibility of a false
positive result (7 NYCRR 1020.4 [f] [1] [ii]; see Matter of Hyzer
v Fischer, 104 AD3d 983, 983 [2013]). Petitioner's remaining
claims, including that the Hearing Officer was biased against
him, have been examined and found to lack merit.

      Lahtinen, J.P., McCarthy, Garry, Rose and Lynch, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
