Opinion
521589.
04-14-2016
In the Matter of Enrique RIVERA, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Enrique Rivera, Stormville, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Enrique Rivera, Stormville, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH and DEVINE, JJ.
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.
Correction officials obtained a sample of petitioner's urine and it twice tested positive for the presence of K2, also known as synthetic marihuana. As a result, petitioner was charged in a misbehavior report with violating disciplinary rule 113.13, which prohibits inmates from using alcohol or other intoxicants (see 7 NYCRR 270.2 [B][14][iii] ). He was found guilty of this charge following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Although the proceeding was improperly transferred to this Court as the verified petition did not raise the issue of substantial evidence, we nevertheless retain jurisdiction in the interest of judicial economy (see
Petitioner's sole contention is that the misbehavior report did not afford him adequate notice of the charge in accordance with the requirements of 7 NYCRR 251–3.1(c). We note that “[a] misbehavior report is sufficient if it contains the date, time and place of the offense [ ], identifies the disciplinary rule[ ] alleged to have been violated and specifies the factual basis for the charge[ ] with enough particularity to enable the inmate to prepare a defense” (Matter of Quintana v. Selsky, 268 A.D.2d 624, 625, 701 N.Y.S.2d 463 [2000] ; see Matter of Jones v. Fischer, 111 A.D.3d 1362, 1363, 974 N.Y.S.2d 220 [2013] ; Matter of Quezada v. Fischer, 85 A.D.3d 1462, 1462, 925 N.Y.S.2d 726 [2011] ). Here, the misbehavior report set forth the dates that the urine specimen was taken and tested and the names of the correction officers involved, and indicated that the test results were positive for the presence of K2, which was a violation of disciplinary rule 113.3, the rule that has been held applicable to this type of misconduct (see Matter of Roman v. Prack, 133 A.D.3d 959, 960, 18 N.Y.S.3d 568 [2015] ; Matter of Ralands v. Prack, 131 A.D.3d 1334, 1335, 16 N.Y.S.3d 788 [2015] ). Accordingly, notwithstanding petitioner's claim to the contrary, we find that the misbehavior report gave petitioner adequate notice of the charge to enable him to prepare a defense.
Matter of Toliver v. New York State Dept. of Corr. & Community Supervision, 127 A.D.3d 1536, 1537 n. 1, 6 N.Y.S.3d 331 [2015] ).