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IN RE: Luis RAMOS (2000)

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Luis RAMOS, Petitioner, v. Floyd BENNETT, as Superintendent of Elmira Correctional Facility, et al., Respondents.

Decided: October 26, 2000

Before:  CARDONA, P.J., SPAIN, GRAFFEO, ROSE and LAHTINEN, JJ. Luis Ramos, Elmira, petitioner in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Superintendent of Elmira Correctional Facility which found petitioner guilty of violating a prison disciplinary rule.

 Petitioner challenges a determination finding him guilty of possessing alcohol after a bucket containing two to three gallons of liquid that smelled like alcohol was found in his cell.   We reject petitioner's assertion that scientific testing of the substance was required inasmuch as the nature of alcoholic beverages is a matter of common knowledge (see, Matter of Pulecio v. Goord, 274 A.D.2d 786, 711 N.Y.S.2d 922;  Matter of Collins v. Goord, 272 A.D.2d 703, 708 N.Y.S.2d 911).   The observation and testimony of the reporting correction officer that the substance was fermenting and smelled like alcohol, together with the misbehavior report and petitioner's testimony that he saved juice that was left after meals, provide substantial evidence to support the determination of guilt (see, Matter of Collins v. Goord, supra;  see also, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   Although petitioner claims that the substance found was merely juice, this created a credibility issue for the Hearing Officer to resolve (see, id.).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


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