Matter of Jones v. Venettozzi

2017 NY Slip Op 6125, 153 A.D.3d 1073, 57 N.Y.S.3d 446

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 2017
• Docket: 523984
• Status: Published

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 the Commissioner of Corrections and Community Supervision finding 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 contraband. * The misbehavior report and testimony at the hearing, which related that a brown or green leafy substance was found in petitioner’s locker and that petitioner admitted that the substance was synthetic marihuana, provide substantial evidence to support the determination of guilt. Contrary to petitioner’s contention, no positive testing identifying the substance was required given the admission by petitioner regarding the nature of the substance as set forth in the misbehavior report and as testified to at the hearing (see Matter of Burt v Annucci, 131 AD3d 751, 752 [2015]; cf. Matter of McCaskell v Rodriguez, 148 AD3d 1407, 1408 [2017]). To the extent that petitioner denies making such an admission and contends that the substance was leaves from a plant, these presented credibility issues for the Hearing Officer to resolve (see Matter of Austin v Annucci, 145 AD3d 1263, 1264 [2016]; Matter of Oliver v Fischer, 107 AD3d 1268, 1269 [2013]). Petitioner’s remaining contention has been reviewed and found to be without merit.

Peters, P.J., Egan Jr., Clark, Mulvey and Pritzker, JJ., concur.

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

* The misbehavior report also charged petitioner with possessing an intoxicant, but that charge, inexplicably, was not addressed at the hearing.