Comfort v. Irvin — 197 A.D.2d 907

Majority

p. 907

In the Matter of Paul Comfort, Petitioner, v Frank E. Irvin, as Superintendent of Wende Correctional Facility, Respondent.

[602 NYS2d 264]

—Determination unanimously confirmed and petition dismissed. Memorandum: We reject petitioner’s challenges to the reliability of the EMIT test. The correction officers who collected and tested petitioner’s urine sample reasonably complied with the regulations governing urinalysis testing (see, 7 NYCRR part 1020; Matter of Melette v Berry, 181 AD2d 950 , 951, lv dismissed 80 NY2d 1022 ; Matter of Hop Wah v Coughlin, 153 AD2d 999 , lv denied 75 NY2d 705 ), and nothing in the record suggests that there was any defect in the chain of custody (see, Matter of McGill v Coughlin, 182 AD2d 1103 ). The Hearing Officer was entitled to rely on the result of the EMIT test in finding petitioner guilty of violating rule 113.12 (7 NYCRR 270.2 [B] [14] [in]), prohibiting use of a controlled substance (see, Matter of Lahey v Kelly, 71 NY2d 135 ).

Although petitioner’s hearing was not completed within 14 days following the writing of the misbehavior report (see, 7 NYCRR 251-5.1 [b]), extensions were properly authorized by

p. 908

the Commissioner’s designee (see, Matter of Graham v Henderson, 158 AD2d 911 ). Further, the 14-day time limit is directory only and there is no indication of any substantive prejudice to petitioner resulting from the delay (see, Matter of Lugo v Coughlin, 182 AD2d 920 ; Matter of Rosado v Kuhlmann, 164 AD2d 199 , lv denied 77 NY2d 806 ). (Article 78 Proceeding Transferred by Order of Supreme Court, Erie County, Flaherty, J.) Present—Green, J. P., Balio, Fallon, Doerr and Boehm, JJ.

Cases cited

Melette v. Berry 181 AD2d 950 N.Y. App. Div. 1992-03-26 at 951 p. 907
Hop Wah v. Coughlin 153 AD2d 999 N.Y. App. Div. 1989-09-28 p. 907
Lahey v. Kelly 71 NY2d 135 N.Y. 1987-12-23 p. 907
Graham v. Henderson 158 AD2d 911 N.Y. App. Div. 1990-02-02 p. 908
Rosado v. Kuhlmann 164 AD2d 199 N.Y. App. Div. 1990-11-21 p. 908