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In the Matter of Michael Picariello

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2012

IN THE MATTER OF MICHAEL PICARIELLO, COUNTY OF HUDSON.

On appeal from the New Jersey Civil Service Commission, Docket No. CSC-2009-496.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 17, 2012 --

Before Judges Fisher and Carchman.

Appellant Michael Picariello, a Sergeant employed by respondent County of Hudson Corrections Department (respondent), appeals from the final decision of the Civil Service Commission (CSC), affirming his removal from office after the results of a urinalysis, conducted pursuant to respondent's random drug testing policy, indicated the presence of a cocaine metabolite. Appellant challenges his removal, asserting that the Administrative Law Judge (ALJ) erred in finding the drug test results to be accurate. In addition, among other issues, appellant claims respondent violated Attorney General of New Jersey, Revised Law Enforcement Drug Screening Guidelines (Oct. 22, 1986), and failed to maintain the chain of custody with respect to appellant's split sample. Appellant asserts that these violations constituted a deprivation of his due process as well as Fourth Amendment rights. We reject appellant's arguments and affirm.

These are the relevant facts. Appellant began his employment with the Corrections Department in 1990 and in 1995 was promoted to Sergeant. During his employment, appellant submitted to random drug testing several times without incident.

On May 31, 2006, appellant was selected for random drug testing. He provided two urine samples: one to be tested by the State Toxicology Laboratory, the other to be retained by respondent in the event that appellant later challenged the results of the first urinalysis. Investigator Edward Ryan of respondent's Internal Affairs Division (IAD) administered the urine test to appellant. Investigator Ryan was certified to administer drugs tests and had conducted more than ten individual random drug tests of officers for respondent. Investigator Ryan provided each officer, including appellant, with a copy of the Guidelines, which included a separate acknowledgment that each officer executed. Each officer also received a packet of information to review, which included a Medical Information Form and a document outlining testing procedures, penalties for refusing the exam and punishment for a positive result. Investigator Ryan witnessed appellant as the latter signed the Drug Screening Advisory, which informed appellant that he was selected to be tested, as well as each paragraph of the Urine Specimen Acquisition Check List. Each officer signed the Medication Information Form, which instructed the officers to list any prescription or over-the-counter medication they had consumed within the previous fourteen days. Appellant inquired of Investigator Ryan whether he should list any expired medications he might have taken; Investigator Ryan responded that he believed taking expired medication was a violation of the Guidelines. Appellant indicated on the form that he had ingested nutritional supplements/multi-vitamins and Tylenol P.M. during the relevant time period.

After completing the forms, appellant provided his urine specimen to Investigator Ryan on May 31, 2006, at 12:50 p.m. On the "Urine Sample Chain of Custody Log Form," Investigator Ryan included appellant's social security number and indicated that one of appellant's samples was marked "Laboratory" and would be stored in the refrigerator until it was transported to the State Toxicology Laboratory. The split sample was marked "frozen" and was stored in a freezer in a locked room.

On June 1, 2006, Investigator Ryan provided the samples to a laboratory technician from the State Toxicology Laboratory. Investigator Ryan indicated that the test basis was "Officer Random," and he recorded the date when the temperature was taken for each sample. Investigator Ryan filled out the Law Enforcement Drug Testing Chain of Custody Form provided by the State Toxicology Laboratory and transferred twenty-two samples; however, a memo titled Acknowledgment by Submitting Agency that was dated June 1, 2006 and signed by Investigator Ryan stated that only eighteen samples were submitted. Absent from the form was documentation of the dates and times when the samples were removed and of the identities of the people who had transported the samples. The samples were identified by the social security numbers listed on the form.

Chantle Marakovitz, a technician at the State Toxicology Laboratory, reviewed the samples, verifying social security numbers, Medication Information Forms and the recorded temperatures. The technician time-stamped the documents and marked "accepted" next to each sample.

Dr. Robert Havier, the supervising forensic toxicologist at the State Toxicology Laboratory, reviewed the test results for appellant's sample and signed the Final Report. Havier described the standard procedures at the Laboratory: once a specimen arrives, it is assigned a case number; two tests are conducted on the urine sample, the first of which screens a portion of the urine for the presence of eight different classes of drugs. The second test is a Gas Chromatograph Mass Spectrometer test (GC/MS), which identifies the specific substance(s) present in the specimen and the concentration of each substance. A positive test result is reviewed to determine if any substances listed on the Medical Information Form could have caused the positive result.

Appellant's sample underwent the screening test on July 5, 2006 and tested positive for drugs. Because appellant's sample tested positive during the initial screening, it was subjected to the GC/MS test. After an initial extraction of appellant's sample underwent analysis, it was determined that the machine was not calibrated properly, and appellant's sample was re-extracted for further testing.

The second extraction tested positive for benzoylecgonine, a metabolite of cocaine. The concentration of benzoylecgonine in appellant's sample appeared to be 92,000. This value was extraordinarily high, nearly one hundred times above the machine's upper limit for producing accurate readings. Upon reviewing the testing record during the hearing, Havier discovered an error in the technician's dilution, indicating that she had diluted the sample to a ratio of one part sample to seven parts dilutant, rather than the required ratio of one to nine. While the dilution error explained the high concentration in part, Havier opined that even if the technician had properly diluted the sample, the cocaine metabolite test result would still have been extraordinarily high.

On July 26, 2006, respondent received notification that appellant's sample tested positive for cocaine. On July 27, 2006, appellant was advised of the results, and he was served with a Preliminary Notice of Disciplinary Action (PNDA) charging appellant with the following violations of the New Jersey Administrative Code: Incompetency, inefficiency or failure to perform duties, N.J.A.C. 4A:2-2.3(a)(1); Insubordination, N.J.A.C. 4A:2-2.3(a)(2); Inability to perform duties, N.J.A.C. 4A:2-2.3(a)(3); Conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6); Neglect of duty, N.J.A.C. 4A:2-2.3(a)(7); and Other sufficient cause, N.J.A.C. 4A:2-2.3(a)(11).

On August 1, 2006, respondent conducted a Loudermill*fn1

hearing.

During the pendency of the disciplinary charges, appellant requested that his split sample be tested. Initially, his counsel requested that the split sample be sent via UPS to a laboratory in Pennsylvania, but then-Internal Affairs Captain David Krusznis informed appellant's counsel that, pursuant to the Guidelines, the specimen had to be tested at a laboratory licensed in New Jersey. In March 2008, almost two years after the initial testing, a courier from Quest Diagnostics collected appellant's split sample from Ariestides Lambos, a Sergeant in respondent's IAD. Sergeant Lambos modified a form the courier provided him to reflect that the sample was not new. He also filled out an Internal Affairs evidence record form, and the courier signed a receipt for the split sample. Appellant was subsequently notified that Quest Diagnostics would not test the split sample because there was a problem with the chain of custody.

Following a departmental hearing, respondent issued a Final Notice of Disciplinary Action (FNDA) on July 16, 2008, sustaining all of the charges contained in the PNDA and upholding the disciplinary penalty of removal, effective that same day.

Appellant appealed to the Merit System Board (now the CSC). The appeal was transferred to the Office of Administrative Law (OAL) on December 5, 2008. The ALJ issued an Initial Decision sustaining respondent's charges and ordering appellant's removal.

The CSC issued its Final Decision, accepting and adopting the ALJ's Initial Decision and upholding appellant's removal. This appeal followed.

Appellant raises the following issues on appeal:

POINT I: THE CIVIL SERVICE COMMISSION'S FINAL DECISION UPHOLDING THE DISCIPLINARY CHARGE AGAINST SERGEANT PICARIELLO IS ARBITRARY AND CAPRICIOUS.

POINT II: THE COURT SHOULD REVERSE THE FINAL DECISION AND DISMISS THE DISCIPLINARY CHARGES AGAINST SERGEANT PICARIELLO AS THE TOXICOLOGY LAB DRUG TESTING RESULTS LACK CREDIBILITY AND RELIABILITY AND ARE PURE HEARSAY.

A. SERGEANT PICARIELLO'S TEST SHOULD NOT HAVE BEEN ADMISSIBLE AS THERE WAS [SIC] SIGNIFICANT ERRORS IN THE TESTING OF THE SAMPLE THUS MAKING THE RESULTS NOT CREDIBLE OR RELIABLE.

B. THE TOXICOLOGY LAB DRUG TESTING RESULTS WERE INADMISSIBLE SINCE THE EVIDENCE SUBMITTED WAS PURE HEARSAY AND NOT SUPPORTED BY ANY FIRST HAND [SIC] KNOWLEDGE OF THE TESTING PROCEDURES OR COMPETENT RELIABLE EVIDENCE.

POINT III: THE ATTORNEY GENERAL'S DRUG TESTING GUIDELINES, THAT WERE ADOPTED BY HUDSON COUNTY CORRECTION AS THEIR [SIC] RULES AND REGULATIONS, WERE NOT FOLLOWED DURING THE RANDOM DRUG TESTING OF SERGEANT PICARIELLO.

A. THE CORRECTIONS DEPARTMENT DID NOT FOLLOW THE ATTORNEY GENERAL'S GUIDELINES, THAT IT ADOPTED AS ITS RULES AND REGULATIONS, REQUIRING LAW ENFORCEMENT OFFICERS SUBJECT TO RANDOM DRUG TESTING TO IDENTIFY ALL MEDICATIONS TAKEN IN THE LAST TWO WEEKS.

B. THE RESULTS OF THE RANDOM DRUG TEST WERE NOT PROVIDED TO SERGEANT PICARIELLO WITHIN THE FIFTEEN (15) WORKING DAYS OF THE GIVEN TEST, RESULTING IN THE CORRECTIONS DEPARTMENT'S SIGNIFICANT DEPARTURE FROM THE ADOPTED ATTORNEY GENERAL'S GUIDELINES AND THE RULES AND REGULATIONS.

POINT IV: IN VIOLATION OF THE RULES AND REGULATIONS, AND THE ATTORNEY GENERAL'S GUIDELINES, THE CHAIN OF CUSTODY WAS INTERRUPTED NUMEROUS TIMES DURING THE RANDOM DRUG TESTING[,] SIGNIFICANTLY COMPROMISING THE INTEGRITY OF SERGEANT PICARIELLO'S SPECIMENS AND THEIR ADMISSIBILITY.

A. SERGEANT PICARIELLO'S SPECIMENS WERE COMPROMISED AT THE OUTSET BY NUMEROUS INTERRUPTIONS OF THE CHAIN OF CUSTODY.

B. SERGEANT PICARIELLO REQUESTED THE SPLIT SAMPLE BE TESTED, HOWEVER THERE WAS A SIGNIFICANT DELAY IN ITS RELEASE AND LACK OF CHAIN OF CUSTODY DOCUMENTATION, THUS PREVENTING ITS TESTING BY AN INDEPENDENT LAB.

POINT V:

THE CORRECTIONS DEPARTMENT VIOLATED SERGEANT PICARIELLO'S CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN IT FAILED TO PRESERVE THE CHAIN OF CUSTODY PREVENTING THE SPLIT SAMPLE FROM BEING TESTED.

POINT VI: THE CORRECTIONS DEPARTMENT VIOLATED SERGEANT PICARIELLO'S CONSTITUTIONAL RIGHT TO PRIVACY WHEN IT FAILED TO ADHERE [TO] THE ATTORNEY GENERAL'S GUIDELINES.

Particularly relevant to our resolution of the issues raised in this appeal is our standard of review. "A[n] [agency's] interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). However, in reviewing the decision of an administrative agency, "we must give deference to the agency's findings of facts, and some deference to its interpretation of statutes and regulations within its implementing and enforcing responsibility." Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (internal quotation marks and citations omitted). See also Glukowski v. Equity One, Inc., 180 N.J. 49, 66 (2004). Such deference is appropriate "because the responsibilities for assessing the wisdom of policy choices and resolving the struggle between competing views of the public interest are not judicial ones, and because of the agency's greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated. Id. at 65 (quoting F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S. Ct. 1291, 1300, 146 L. Ed. 2d 121, 134 (2000)).

This case involves the interpretation of civil service laws, rules and regulations by the CSC, an entity with expertise in this subject matter. Where an agency's finding "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[,] . . . . the appellate court should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001) (internal quotation marks and citations omitted).

Review of agency fact-finding is governed by the same standard applied to a judge's findings in a non-jury trial. That is, the agency's determinations must be supported by substantial credible evidence in the record. In re Taylor, 158 N.J. 644, 656 (1999). Judicial review of an agency's decision is restricted to four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).]

Accordingly, if in reviewing an agency decision we find sufficient credible evidence in the record to support the agency's conclusions, we will uphold those findings, even if we would have reached a different result. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 580 (1988). "[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Credibility is for the fact-finder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 499 (1956). Where an agency has made a credibility determination, even without specifically articulating detailed findings of credibility, we will not make our own credibility determination where the reasons for a determination may be inferred from the record. State v. Locurto, 157 N.J. 463, 472-75 (1999).

We now address appellant's specific claims of error. Here, respondent bears the burden in enforcement proceedings to prove violations of administrative regulations, see Cumberland Farms, Inc. v. Moffett, 218 N.J. Super. 331, 341 (App. Div. 1987), and must establish the violations by a preponderance of the credible evidence, In re Polk, 90 N.J. 550, 560, 569 (1982). While the rules of evidence are relaxed in administrative proceedings, there must be substantial credible evidence in the record to prove a violation of an administrative regulation. N.J.S.A. 52:14B-10(a)(C); In re Taylor, supra, 158 N.J. at 656-57.

Appellant claims that respondent's witnesses and evidence concerning the test results lacked credibility and reliability. As we have noted, we defer to the credibility determinations of the trier of fact, who had the opportunity to observe the witnesses and judge their credibility. See ibid.

The record demonstrated that the urine test result was unusually high, of a magnitude most commonly found in corpses, presumably of people who had died of cocaine overdoses. Havier characterized the recorded concentration as an unreliable result; however, he stated that the urinalysis was incapable of producing a false positive result for cocaine. The issue was therefore not whether cocaine metabolite was present in appellant's sample but rather whether a properly diluted sample would have contained a concentration of the metabolite high enough to justify termination. Indeed, various rules and regulations establish a threshold concentration of cocaine metabolite, below which discipline is unwarranted. Havier explained that the extremely high concentration of cocaine metabolite found in the improperly diluted sample would have been extremely high if it had been properly diluted and would have exceeded the threshold concentration required as the predicate for termination.

Appellant next challenges respondent's compliance with the Guidelines. The Attorney General of New Jersey issued Guidelines regarding the urine testing of police officers, which also applies to corrections officers. Attorney General of New Jersey, Revised Law Enforcement Drug Screening Guidelines 1-2 (June 2001) (Guidelines). "The statute [N.J.S.A. 40A:14-181] 'requires [e]very law enforcement] agency in the State to 'adopt and implement guidelines' that are 'consistent with the guidelines' that have been promulgated by the Attorney General, through the Police Bureau in the Division of Criminal Justice." O'Rourke v. City of Lambertville, 405 N.J. Super. 8, 19 (App. Div. 2008), certif. denied, 198 N.J. 311 (2009). The Corrections Department adopted the Guidelines verbatim. While full compliance with the Guidelines is not required, multiple and significant departures impeach the reliability and trustworthiness of the testing. In re Paterno, 96 N.J.A.R.2d (POL) (Div. of State Police 1994), appeal dismissed, No. A-1563-94T2 (App. Div. February 8, 1996).

Appellant claims that there were significant departures from the Guidelines in this case, and that the agency's failure to comply with these rules mandates his reinstatement. O'Rourke, supra, 405 N.J. Super. at 23.

We consider each of appellant's allegations regarding specific breaches.

The Guidelines require that "[p]rior to the submission of a urine specimen, sworn law enforcement officers shall complete a medical questionnaire . . . which clearly describes all medication, both prescription and over-the-counter (non-prescription), that were ingested in the past 14 days." Appellant maintains that the Corrections Department breached the Guidelines when Office Ryan advised appellant that taking expired medication was a violation of the Guidelines. Despite his advice to appellant, Investigator Ryan later indicated that he was unsure whether there was a prohibition against ingestion of expired medication in the Guidelines.*fn2

The Commission rejected appellant's argument for the following reasons: appellant neither admitted to having taken medication he did not list nor provided evidence to support that such medication would cause a positive test result for cocaine; and notwithstanding Investigator Ryan's advice, it was appellant's responsibility to accurately complete the medication information form, which clearly asked employees to list all medications ingested within fourteen days of the test.

An agency representative's failure to comply with the Guidelines may necessitate that an employee be reinstated even when the employee engaged in conduct unbecoming a public employee. O'Rourke, supra, 405 N.J. Super. at 20-21. Whether a reviewing court will require reinstatement turns on the degree to which the agency's deviation from the Guidelines unfairly prejudiced the appellant. In Ensslin v. Township of North Bergen, 275 N.J. Super. 352 (App. Div. 1994), we deemed an agency's delay in scheduling a hearing to be an inconsequential deviation from the Guidelines, id. at 361, but "[t]he Ensslin decision cannot be read to mean that any irregularity in the disciplinary process, no matter how serious, can be cured by a subsequent evidentiary hearing." O'Rourke, supra, 405 N.J. Super. at 22. When the agency's deviation from the Guidelines "undermine[s] the fairness of the process at its inception and taint[s] the entire proceeding[,]" reinstatement is appropriate. Ibid.

O'Rourke involved an investigation of the plaintiff's alleged misconduct by his supervisor, who was not authorized to conduct such an investigation. Id. at 23. The plaintiff had allegedly conducted a background check of his supervisor, in violation of the supervisor's instructions: the plaintiff was also alleged to have violated work rules based on erroneous instructions by his supervisor. Id. at 13-14. We concluded that, under those circumstances, the supervisor's objectivity in the investigation was suspect. Id. at 21. Moreover, the report the supervisor produced evidenced a bias against the plaintiff, confirming the court's suspicion. Id. at 21. We observed that an evidentiary hearing could not cure these violations of the Guidelines and mandated the plaintiff's reinstatement. Id. at 23.

Here, it is unclear whether appellant withheld information about medications he may have ingested. Assuming he did withhold such information because of Ryan's erroneous advice, the CSC was incorrect in stating that appellant nonetheless had an obligation to disclose all of his medications, which obligation he violated. As in O'Rourke, where the supervisor's erroneous instructions led the plaintiff to violate a work rule, id. at 16, appellant allegedly did not follow the Guidelines because of Investigator Ryan's erroneous advice. Employees may rely on the advice of supervisors and other personnel. See Morella v. Grand Union/New Jersey Self-Insurers Guar. Ass'n, 391 N.J. Super. 231, 243 (App. Div. 2007) (holding that employee who failed to file claim due to reliance on employer's counsel's advice was entitled to receive benefits, and stating that "[e]ven if petitioner had received notice of [her error], unless specifically advised to the contrary, one would expect that she could have reasonably relied upon the advice previously received from [her employer's] counsel"), aff'd o.b., 193 N.J. 350 (2008). See also O'Rourke, supra, 405 N.J. Super. at 23 (noting that, although the plaintiff did not follow supervisor's erroneous instructions, supervisor's deviation from Guidelines mandated plaintiff's reinstatement). However, this does not end the analysis.

During the hearing, appellant failed to demonstrate that he had consumed a substance that would have generated a false positive urinalysis result for cocaine. Because he has not demonstrated that he was in fact prejudiced by the allegedly faulty advice rendered by Ryan, we find no basis to overturn the removal on the grounds presented here.

We reach the same result as it applies to respondent's failure to report the test results within fifteen days. According to the Guidelines, the Laboratory shall notify the law enforcement agency of test results within fifteen working days of the submission. Guidelines, supra, at 10. The analytical framework from O'Rourke and Ensslin applies here. A deviation from the Guidelines warrants reinstatement only when it prejudices the employee's ability to challenge his removal. See O'Rourke, supra, 405 N.J. Super. at 23; Ensslin, supra, 275 N.J. Super. at 361. Appellant provided a specimen on May 31, 2006. The Laboratory received the specimen on June 1, 2006, and the testing occurred in early July. However, respondent did not receive the report until July 26, 2006. Appellant argues that this deviation from the Guidelines is sufficient grounds for his reinstatement. While appellant is correct to note that the Guidelines were not followed, he has offered no argument to demonstrate that the delay prejudiced his ability to challenge his removal. See Ensslin, supra, 275 N.J. Super. at 361 (finding delay in scheduling of hearing to be harmless error). Havier testified that the delay was due to understaffing at the Laboratory as well as the fact that the specimen had to be re-extracted. The re-extraction was an effort on behalf of Laboratory personnel to ensure the accuracy of test results. Furthermore, as the Commission noted, "It could be argued that . . . appellant benefited from this delay in that he remained employed pending the receipt of the test results; had the results been reported within 15 days, . . . appellant would have been removed from employment at a much earlier date." The Commission did not err in its ruling on this issue.

Appellant raises a number of issues on appeal involving the chain of custody of the samples proffered for testing with both the State Police Laboratories and Quest Diagnostics. A trial judge's determination regarding chain of custody is subject to review for abuse of discretion. See State v. Kollarik, 22 N.J. 558, 565-66 (1956); see also State v. Brown, 99 N.J. Super. 22, 27 (App. Div.), certif. denied, 51 N.J. 468 (1968). Challenges to an administrative agency's finding regarding chain of custody are reviewed under the standard we identified earlier. In re Lalama, 343 N.J. Super. 560, 565 (App. Div. 2001). The appointing authority assumes the burden of proof that the chain of custody of the specimen is unbroken. Id. at 566. The legal standard for proving the validity of a chain of custody is a reasonable probability that no tampering has occurred. Brown, supra, 99 N.J. Super. at 28. "Reasonable probability" does not require proof of an uninterrupted chain of possession or the "negat[ion of] every possibility of substitution or change in condition[.]" Id. at 27.

Appellant asserts that the chain of custody for the first sample was broken for the following reasons. First, appellant claims his urine sample was compromised because it was placed in a refrigerator in the "muster room," which "is essentially used by all employees." The record is devoid of proof to suggest that his sample was contaminated while it was stored in the refrigerator in the "muster room." See Middlesex Cnty. Dep't of Health v. Importico, 315 N.J. Super. 397, 424-25 (App. Div. 1998) (finding no breach of chain of custody when there was no evidence of tampering while samples were under State's control).

Second, appellant notes that Investigator Ryan failed to complete the chain of custody form, as evidenced by the fact that the form only designated when the samples were placed in the refrigerator and not when they were removed. However, "[t]he links in the chain of custody of a urine sample or other similar evidence are not required to be established by any particular form of evidence." Lalama, supra, 343 N.J. Super. at 567 (citations omitted). In Lalama, we concluded that the chain of custody was unbroken when a State employee failed to record a sample's removal, but there was documentary evidence of the sample's receipt, accompanied by testimony confirming the details of the sample's transfer. Ibid. Here, the date when the sample was delivered was recorded, and Ryan established the following facts: the sample was collected on May 31, 2006, he personally placed it in a locked refrigerator, and he personally delivered it to the Toxicology Lab the next day, on June 1, 2006. These facts are sufficient to create a reasonable probability that the specimen was not altered.

Third, appellant asserts that there was a discrepancy in the number of samples that Investigator Ryan transported to the Toxicology Lab. The CSC correctly reasoned that this discrepancy "is of no moment, since there is ample evidence that . . . appellant's sample was one of the 18 delivered to the State Toxicology Laboratory." See ibid. (finding that chain of custody was not broken when transmittal and identification numbers were the same at point of sample's origin and after transportation to laboratory for analysis).

Fourth, appellant claims that Investigator Ryan was uncertain whether the laboratory verified the temperature of the sample or if the laboratory based the temperature calculation on his word. Dr. Havier's description of the procedures for handling samples at the toxicology laboratory, as well as the laboratory's records, indicate that Investigator Ryan's testimony was irrelevant for the purpose of testing this link in the chain of custody.

Fifth, appellant notes that his positive test result was marked on a form that was completed on June 1, 2006, but his test results were not known to the Corrections Department until July 26, 2006. He suggests that there was an impropriety in that he was identified for punishment before it was possible for the State to have known the results of his urinalysis. We deem this of no moment. Appellant's urine tested positive for cocaine metabolite, and that test result formed the basis for his removal; the date upon which appellant's number was circled on the Laboratory's form was immaterial to this determination and had no bearing on the chain of custody.

The chain of custody was also challenged as to the split sample. The Guidelines provide that, during random drug testing, a tested law enforcement officer has the option of producing a second urine specimen when the first is collected. If the first specimen tests positive for a controlled substance, the officer may request that the split sample be transferred to a licensed clinical laboratory that has been designated according to the New Jersey Department of Health under the New Jersey Clinical Laboratory Improvement Act. The agency is only obligated to retain the split sample for sixty days after its collection. Accordingly, the transfer of the split sample to a licensed laboratory is to take place within sixty days of the date of the specimen's collection, and the transfer must comply with the chain of custody procedure required for transportation of the first specimen. Guidelines, supra, at 8.

Appellant maintains that the chain of custody for the split sample was broken, such that the sample could not be tested. Respondent does not dispute appellant's claim. However, respondent argues that the breach of the chain of custody did not prejudice appellant.

In this case, the Commission observed that there was "insufficient evidence in the record to support the appellant's claim that the delay in testing the split sample was entirely attributable to the appointing authority," and further concluded that there was evidence of neither bad faith nor manifest prejudice regarding the split sample, because "appellant has failed to show that there were fundamental flaws in the testing process which rendered his [first] test result unreliable."

The Commission correctly noted that there is no evidence of bad faith in the record. Appellant was informed during his Loudermill hearing as to the procedure for requesting that his split sample be tested. The two-year delay in transporting the sample for testing was due to appellant's failure to identify an appropriate laboratory to perform the test, even after Deputy Warden Krusznis informed appellant's counsel that, pursuant to the Guidelines, the sample had to be tested by a licensed New Jersey laboratory. Krusznis also notified appellant that the laboratory appellant had selected had a licensing issue. Although in a letter dated April 3, 2007, appellant's counsel claimed that his numerous attempts to retrieve the split sample were ignored, the record does not support this claim, and Corrections personnel indicated that they responded to appellant's questions about the split sample. Most important, respondent retained appellant's split sample for almost two years, well in excess of its obligation under the Guidelines to retain the sample for sixty days. In the absence of an obligation to preserve the sample, respondent's failure to maintain the chain of custody was not evidence of negligence, let alone bad faith.

In the absence of a showing of bad faith, an appellant may nonetheless prevail on a due process claim by demonstrating the materiality of the split sample to his claim and prejudice resulting from its exclusion. George v. City of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006) (noting that when bad faith is absent, relief should be granted only if "there is a showing of manifest prejudice or harm") (quoting State v. Dreher, 302 N.J. Super. 408, 489 (App. Div. 1997)). A split sample is considered to be potentially exculpatory. George, supra, 384 N.J. Super. at 243 ("a negative result . . . or well below the . . . threshold . . . would still only be evidence of a mistake in the two positive State Lab results and not clearly exculpatory"). Since we have determined that the original test was reliable, the value of the split sample is significantly diminished.

The parties' relative responsibility for the destruction of the split sample is a factor in determining prejudice. Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 152 (1982) (evaluating length of delay, reasons for delay, and changing conditions of either or both of parties during the delay); Atlantic City v. Civil Serv. Comm'n, 3 N.J. Super. 57, 60 (App. Div. 1949) (describing circumstances in which delay in asserting rights may be excusable and those under which the doctrine of laches should be applied: for an unreasonable and unexplained length of time, under circumstances permitting diligence). We conclude that respondent cannot be held responsible for any delay in processing the split sample. Appellant failed to have the sample tested by a qualified testing center for almost two years. We find no violation of appellant's due process rights.

Finally, we reject, without further discussion, appellant's argument regarding a violation of his right to privacy as well as his claim that the admission of the records violated the hearsay rules. We deem both arguments to be without merit. R. 2:11-3(e)(1)(E).

Affirmed.


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