Opinion
08-03-2017
In the Matter of Leon SIMMONS, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
Leon Simmons, Ogdensburg, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.
Leon Simmons, Ogdensburg, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.
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.
While responding to a medical emergency, a correction sergeant observed petitioner to be acting in an unusual manner, then become unresponsive and begin vomiting. Petitioner was taken to the facility infirmary and later to the hospital, but no medical reason for his condition was identified. Based upon his observations and experience, the sergeant concluded that petitioner had been under the influence of an intoxicant. As a result, petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting inmates from using intoxicants, and he was found guilty following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The detailed misbehavior report and testimony of the sergeant who observed petitioner and that of the nurse who reviewed his medical records, both of whom opined that petitioner was under the influence of some type of intoxicant, provide substantial evidence supporting the determination of guilt (see Matter of Vargus v. Annucci, 147 A.D.3d 1124, 1125, 45 N.Y.S.3d 811 [2017] ; see also Matter of Panek v. Goord, 23 A.D.3d 966, 967, 804 N.Y.S.2d 471 [2005], lv. denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [2006] ). The absence of positive urinalysis test results is not dispositive here (see Matter of Vargus v. Annucci, 147 A.D.3d at 1124, 45 N.Y.S.3d 811 ; see also Matter of Panek v. Goord, 23 A.D.3d at 967, 804 N.Y.S.2d 471 ). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are lacking in merit.ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
GARRY, J.P., LYNCH, DEVINE, AARONS and PRITZKER, JJ., concur.