(dissenting). In my view, the testimony of the correction officer who conducted the urinalysis testing fell below the minimum necessary to establish a reliable chain of custody, and I respectfully dissent.
The concept of chain of custody by no means requires a correction officer performing a urinalysis test on an inmate to literally keep the sample in his or her physical possession from the moment of the draw to the moment of testing. Circumstances may require the officer to put the sample aside and attend to other duties before performing the actual test; assuming the security of the sample can be documented in the interim, I have no quarrel.
In this case, it is apparent from the record that the officer performed tests on multiple inmates that day, and there was a gap of approximately one hour and 25 minutes between receiving and testing petitioner’s sample. While first contending that petitioner’s sample went from “him to me the whole time,” the officer then stated that if it was not in his custody the entire time, it would have been in the urinalysis room. Stating that “anything’s possible,” the officer explained that, because of the multiple tests conducted that day, he was unsure of the actual sequence of events without checking other records, but that he could explain his “routine,” what he does “on a daily basis.” Because I believe that hearing testimony as to how the chain of custody is routinely maintained can never be a substitute for the case specific testimony, such as we have previously approved in Matter of Odome v Goord (8 AD3d 921, 922 [2004]) and Matter of Graziano v Selsky (9 AD3d 752, 752 [2004]), I find that an insufficient foundational basis for petitioner’s guilt was established and would annul the determination.
Adjudged that the determination is confirmed, without costs, and petition dismissed.