Matter of Faulks v. Fischer

Appellate Division of the Supreme Court of New York

Matter of Faulks v. Fischer

126 A.D.3d 1197, 3 N.Y.S.3d 634

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2015

Docket519188

StatusPublished

Cited by2 cases

This text of 126 A.D.3d 1197 (Matter of Faulks v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Faulks v. Fischer, 126 A.D.3d 1197, 3 N.Y.S.3d 634 (N.Y. Ct. App. 2015).

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Opinion

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.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of possessing alcohol. The misbehavior report relates that petitioner appeared to be intoxicated — acting in an animated *1198 manner, talking loudly and slurring his speech — and, upon smelling an empty orange juice bottle recovered from petitioner’s cell, the reporting correction officer detected the odor of alcohol. The misbehavior report and interdepartmental communication provide substantial evidence to support the determination of guilt (see Matter of Hayes v Fischer, 123 AD3d 1266, 1266 [2014]; Matter of Rivera v Goord, 2 AD3d 922, 922 [2003]). Contrary to petitioner’s contention, no “scientific testing of the substance was required inasmuch as the nature of alcoholic beverages is a matter of common knowledge” (Matter of Ramos v Bennett, 276 AD2d 1008, 1008 [2000]; see Matter of Hernandez v Selsky, 62 AD3d 1177, 1178 [2009]).

Peters, P.J., McCarthy, Rose and Lynch, JJ., concur.

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

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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.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of possessing alcohol. The misbehavior report relates that petitioner appeared to be intoxicated — acting in an animated *1198 manner, talking loudly and slurring his speech — and, upon smelling an empty orange juice bottle recovered from petitioner’s cell, the reporting correction officer detected the odor of alcohol. The misbehavior report and interdepartmental communication provide substantial evidence to support the determination of guilt (see Matter of Hayes v Fischer, 123 AD3d 1266, 1266 [2014]; Matter of Rivera v Goord, 2 AD3d 922, 922 [2003]). Contrary to petitioner’s contention, no “scientific testing of the substance was required inasmuch as the nature of alcoholic beverages is a matter of common knowledge” (Matter of Ramos v Bennett, 276 AD2d 1008, 1008 [2000]; see Matter of Hernandez v Selsky, 62 AD3d 1177, 1178 [2009]).

Peters, P.J., McCarthy, Rose and Lynch, JJ., concur.

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

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Bluebook (online)

126 A.D.3d 1197, 3 N.Y.S.3d 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-faulks-v-fischer-nyappdiv-2015.

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