Opinion
2014-11-13
In the Matter of Richard RIVERA, Petitioner, v. COMMISSIONER OF DOCS, Respondent.
Richard Rivera, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Richard Rivera, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: LAHTINEN, J.P., GARRY, EGAN JR., DEVINE and CLARK, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, was found with two pills, later determined to be 800 mg each of Neurontin, in his pocket. He was charged in a misbehavior report with unauthorized possession of medication and smuggling. A search of his cell shortly thereafter disclosed unauthorized items including 165 postage stamps, 14 pills later determined to be Neurontin (three were 300 mg and 11 were 800 mg), 32 packs of cigarettes, and 20 packages of tobacco. He was charged in a second misbehavior report with possession of unauthorized medication, possession of excessive quantities of stamps and tobacco, and smuggling. After a hearing, he was found not guilty of the smuggling charges but guilty of the remaining charges, and a penalty was imposed. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.
We confirm. The detailed misbehavior reports and documentary evidence provide substantial evidence of petitioner's guilt ( see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990]; Matter of McKinley v. Goord, 40 A.D.3d 1280, 1280, 836 N.Y.S.2d 349 [2007], lv. denied 9 N.Y.3d 807, 843 N.Y.S.2d 536, 875 N.E.2d 29 [2007] ). The record reflects that the facility nurse identified all of the pills as Neurontin and indicated that the 800 mg pills had been prescribed to petitioner for pain medication but were required to be administered by nursing staff and taken when given, but that petitioner had no order for the 300 mg pills ( see7 NYCRR 1010.4[d] ). Petitioner's testimony that he was authorized “not to tak[e] it sometimes” did not establish that he was permitted to possess and carry the pills, nor establish any authorization for the 300 mg pills ( see Matter of Hoskins v. Fischer, 49 A.D.3d 1009, 1009–1010, 853 N.Y.S.2d 422 [2008], lv. denied9 N.Y.3d 807, 843 N.Y.S.2d 536, 875 N.E.2d 29 [2007] ). Further, while petitioner's challenge to the proof of the value of the stamps was preserved, having been raised on his administrative appeal ( see Matter of Pine v. Fischer, 118 A.D.3d 1196, 1197, 988 N.Y.S.2d 283 [2014], lv. denied24 N.Y.3d 904, 2014 WL 4548523 [2014] ), it lacks merit. Rule 113.16 prohibits possession of stamps exceeding $22.50 in value, and the record contains documentary evidence revealing a violation ( see7 NYCRR 270.2[B][14][vi] ). Further, while there are gaps in the hearing transcript, we do not find that they preclude meaningful review ( see Matter of Merritt v. Fischer, 108 A.D.3d 993, 994–995, 969 N.Y.S.2d 248 [2013] ). Petitioner's remaining claims also lack merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.