Opinion
523699
12-14-2017
In the Matter of Enrique GUZMAN, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
Tully Rinckey PLLC, Albany (Derrick T. Hogan of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondents.
Tully Rinckey PLLC, Albany (Derrick T. Hogan of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondents.
Before: McCarthy, J.P., Egan Jr., Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
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 Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged with possessing contraband, possessing a controlled substance and possessing an intoxicant after a search of his locker revealed a green leafy substance, located in a parmesan cheese container, that tested positive for amphetamines and was identified by a correction officer as synthetic marihuana. Following a tier III disciplinary hearing, petitioner was found guilty as charged. Upon petitioner's administrative appeal, the charge of possessing an intoxicant was dismissed, but the determination was otherwise upheld. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the positive NIK test results and related documentation constitute substantial evidence supporting the determination of guilt (see Matter of Mitchell v. Department of Corr. & Community Supervision, 147 A.D.3d 1135, 1136, 45 N.Y.S.3d 820 [2017] ; Matter of Torres v. Selsky, 8 A.D.3d 775, 776, 777 N.Y.S.2d 815 [2004] ). We disagree with petitioner's contention that the dismissal of the intoxicant charge required the dismissal of the remaining charges. Rule 113.13 prohibits the possession of an intoxicant (see 7 NYCRR 270.2 [B][14][iii] ), which includes synthetic marihuana (see Matter of Austin v. Annucci, 145 A.D.3d 1263, 1264, 42 N.Y.S.3d 681 [2016] ; Matter of Ralands v. Prack, 131 A.D.3d 1334, 1335, 16 N.Y.S.3d 788 [2015] ). Respondent Commissioner of Corrections and Community Supervision determined that there was insufficient information in the record to support a charge under rule 113.13, and that charge was dismissed. However, petitioner was also charged with violating rule 113.25, which specifically prohibits the possession of "any narcotic ... or controlled substance" ( 7 NYCRR 270.2 [B][14][xv] ). Thus, even though there was insufficient information in this record to find that petitioner possessed synthetic marihuana, the positive test result for amphetamines provided substantial evidence supporting the finding of guilt on the charges of possessing a controlled substance (see e.g. Matter of McDermott v. Annucci, 142 A.D.3d 1210, 1210, 37 N.Y.S.3d 471 [2016] ; Matter of Shorter v. Prack, 100 A.D.3d 1178, 1179, 953 N.Y.S.2d 414 [2012] ) and possessing contraband (see Matter of Sealy v. New York State Dept. of Corr. & Community Supervision, 147 A.D.3d 1127, 1127, 45 N.Y.S.3d 814 [2017], lv denied 29 N.Y.3d 912, 2017 WL 2468592 [2017] ; compare Matter of McCaskell v. Rodriguez, 148 A.D.3d 1407, 1408, 48 N.Y.S.3d 642 [2017] ). Although petitioner argued that the substance was actually oregano, this created a credibility issue for the Hearing Officer to resolve (see Matter of Shorter v. Prack, 100 A.D.3d at 1179, 953 N.Y.S.2d 414 ; Matter of Knight v. Selsky, 297 A.D.2d 845, 846, 747 N.Y.S.2d 55 [2002] ).
Petitioner's further contention that a proper foundation for the positive drug test was not established in accordance with 7 NYCRR 1010.5 is not preserved for our review (see Matter of Torres v. Fischer, 106 A.D.3d 1342, 1343, 965 N.Y.S.2d 390 [2013] ; Matter of Filpo v. Goord, 37 A.D.3d 891, 892, 828 N.Y.S.2d 732 [2007] ). Petitioner's remaining contentions, to the extent they are properly before us, have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCarthy, J.P., Egan Jr., Clark, Aarons and Pritzker, JJ., concur.