In the Matter of Derrick Wingate, Appellant, v. Glenn S. Goord, as Commissioner of Correctional Services, Respondent

In the Matter of Derrick Wingate, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent. [738 NYS2d 752] [MAJORITY] Appeal from a judgment of the Supreme Court (Teresi, J.), entered June 8, 2001 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule. Petitioner’s only claim on this appeal is that his urine sample, which tested positive for opiates, was taken in violation of respondent’s regulation and directive. There is, however, nothing in either the regulation or the directive that prohibits the taking of successive samples where, as here, the correction officer who collected the samples had reason to believe that the first two samples were not urine and the officer obtained the required authorization for each sample (see, 7 NYCRR 1020.4). Although no misbehavior report was written for the first two adulterated samples provided by petitioner and neither of the samples was tested, these facts have no relevance to petitioner’s guilt of the drug use charge established by the positive test results from the third sample, results which petitioner does not challenge. Mercure, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.