Opinion
05-12-2016
In the Matter of Henry BENITEZ, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Henry Benitez, Romulus, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Henry Benitez, Romulus, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 finding petitioner guilty of violating a prison disciplinary rule.
After a sample of his urine twice tested positive for the presence of cannabinoids, petitioner was charged in a misbehavior report with using a controlled substance. Following a tier III disciplinary hearing, petitioner was found guilty of the charge, and the determination was later affirmed on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.
Initially, we note that petitioner's challenge to the sufficiency of the urinalysis test results raises a question of substantial evidence and, therefore, the matter was properly transferred to this Court (see Matter of Crosby v. Goord, 38 A.D.3d 1110, 1110, 833 N.Y.S.2d 674 [2007] ). Turning to the merits, the misbehavior report, positive urinalysis test results and related documentation, together with the testimony adduced at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Williams v. Prack, 130 A.D.3d 1123, 1123, 11 N.Y.S.3d 750 [2015] ; Matter of Walker v. Annucci, 129 A.D.3d 1414, 1415, 10 N.Y.S.3d 465 [2015] ). Petitioner's contentions that he did not provide a urine specimen because he suffers from shy bladder syndrome and that the correction officer who collected petitioner's specimen allegedly poured an unknown liquid substance into the container created credibility issues for the Hearing Officer to resolve (see Matter of Jones v. Venettozzi, 114 A.D.3d 980, 981, 979 N.Y.S.2d 718 [2014] ; Matter of White v. Fischer, 108 A.D.3d 891, 892, 968 N.Y.S.2d 737 [2013], lv. denied 22 N.Y.3d 853, 2013 WL 5658361 [2013] ). Petitioner's claim that he was improperly denied a videotape of the production and collection of his specimen is without merit as the record reveals that no such videotape existed, and the Hearing Officer cannot be faulted for failing to produce a videotape that did not exist (see Matter of Hand v. Gardner, 114 A.D.3d 988, 989, 979 N.Y.S.2d 868 [2014] ; Matter of Chavis v. Goord, 58 A.D.3d 954, 955, 871 N.Y.S.2d 757 [2009] ). Petitioner's remaining contentions are either unpreserved for our review or are lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., McCARTHY, EGAN JR., DEVINE and MULVEY, JJ., concur.