Supreme Court, Appellate Division, Third Department, New York.
IN RE: Vernon THOMAS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections Community Supervision, Respondent.
Decided: February 01, 2018
Before: Garry, P.J., Devine, Clark, Aarons and Pritzker, JJ.
Vernon Thomas, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with being under the influence of an intoxicant and interfering with an employee. Following a tier III disciplinary hearing, petitioner was found guilty as charged and a penalty was imposed. Upon administrative review, the charge of interfering with an employee was dismissed, but the penalty was left undisturbed. Petitioner thereafter commenced this CPLR article 78 proceeding to challenge respondent's determination.
We confirm. The detailed misbehavior report, the testimony of its author and petitioner's admission that he was intoxicated provide substantial evidence to support the determination of guilt (see Matter of Freeman v. Annucci, 151 A.D.3d 1509, 1510, 54 N.Y.S.3d 602 ; Matter of Pasley v. Venettozzi, 148 A.D.3d 1380, 1381, 48 N.Y.S.3d 633  ). To the extent that petitioner argues that his intoxication was inadvertent, we note that petitioner's intent—or lack thereof—does not negate his violation of the subject rule (see Matter of Bottom v. Annucci, 26 N.Y.3d 983, 986, 19 N.Y.S.3d 209, 41 N.E.3d 66 ; Matter of Muhammad v. Gonyea, 156 A.D.3d 1068, 1069, 65 N.Y.S.3d 466  ). Similarly, petitioner's assertion that he became intoxicated from smoking a cigarette given to him by another inmate—rather than from the alcohol that admittedly was stored in his cell—presented a credibility issue for the Hearing Officer to resolve (see generally Matter of Ball v. Annucci, 144 A.D.3d 1300, 1300, 40 N.Y.S.3d 300 ; Matter of Belle v. Prack, 140 A.D.3d 1509, 1510, 35 N.Y.S.3d 513  ).
Petitioner's due process arguments are equally unavailing. The Hearing Officer accepted petitioner's claim that he tested negative for drugs as per the facility urinalysis report, thereby obviating the need for the report itself. Additionally, the toxicology report generated by the outside hospital was not available at the time of the hearing, and such report, even if favorable to petitioner, would not alter petitioner's admission that he was intoxicated. Petitioner did not request any other documentary evidence, and we are satisfied that he was provided with all reports relevant to the sustained charge (see Matter of Jones v. Fischer, 138 A.D.3d 1294, 1295, 31 N.Y.S.3d 228  ). Petitioner's remaining contentions, including his assertions that he received inadequate employee assistance and that this proceeding should not have been transferred to this Court, have been examined and found to be lacking in merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Garry, P.J., Devine, Clark, Aarons and Pritzker, JJ., concur.
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