                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   518388
________________________________

In the Matter of ARTHUR BOWEN,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of
   Corrections and Community
   Services,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Stein, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                             __________


     Arthur Bowen, Malone, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (William E.
Storrs 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.

      After a sample of his urine twice tested positive for the
presence of cannabinoids, petitioner was charged in a misbehavior
report with violating the prison disciplinary rule prohibiting
the use of narcotics or controlled substances unless prescribed
by health care providers. Following a tier III disciplinary
hearing, he was found guilty and, upon administrative review, the
determination was affirmed with a penalty reduction. This CPLR
article 78 challenge ensued.
                              -2-                  518388

      We confirm. The misbehavior report, positive test results,
hearing testimony and documentary evidence provide substantial
evidence to support the determination (see Matter of Rosario v
Prack, 119 AD3d 1302, 1302 [2014]). Contrary to his contention,
the rules do not require that, following a positive result on the
first test, the second urinalysis test on the sample be performed
by a second, different tester (see 7 NYCRR 1020.4 [1] [f] [iv]).
Further, the Hearing Officer did not err in denying his request
to call as a witness the chart sergeant to establish that no
other qualified officer was present to conduct the second test,
because such testimony was irrelevant (see Matter of Williams v
Fischer, 114 AD3d 977, 977 [2014], lv denied 23 NY3d 903 [2014]).
With regard to petitioner's claim that the test was improperly
approved a day before it was requested, the testimony of the
watch commander who approved the test request clarified that he
made a clerical error in the date on the request form and that
the test was, in fact, approved the following day, after it had
been requested. Thus, the validity of the test procedures was
not undermined (see Matter of Rosario v Prack, 119 AD3d at 1302).
Petitioner's remaining arguments have been considered and found
to be without merit.

     Stein, J.P., McCarthy, Rose, Lynch and Clark, JJ., concur.


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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
