IN RE: Michael RODRIGUEZ (2021)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

A correction officer observed petitioner stumbling to his cell with his eyes rolled back, and petitioner appeared confused, mumbled incoherently and did not respond to the correction officer's inquiry.  Petitioner was then brought to the infirmary, where a registered nurse examined him and observed that petitioner had dilated pupils, a high unlabored pulse and heart rate, and slow, mumbled speech.  Based upon the nurse's observations and experience, she 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 being under the influence of an intoxicant.  Following a tier II disciplinary hearing, petitioner was found guilty as charged.  The determination was later affirmed on administrative appeal, and this CPLR article 78 proceeding ensued.

We confirm.  The detailed misbehavior report, which was endorsed by the nurse who examined petitioner and concluded that petitioner was under the influence of some type of an intoxicant, and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Simmons v. Venettozzi, 153 A.D.3d 1016, 1016, 56 N.Y.S.3d 908 [2017];  Matter of Vargus v. Annucci, 147 A.D.3d 1124, 1125, 45 N.Y.S.3d 811 [2017];  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]).  Moreover, “[t]he absence of positive urinalysis test results is not dispositive here” (Matter of Simmons v. Venettozzi, 153 A.D.3d at 1016, 56 N.Y.S.3d 908;  see Matter of Partak v. Venettozzi, 175 A.D.3d 1633, 1635, 109 N.Y.S.3d 481 [2019];  Matter of Vargus v. Annucci, 147 A.D.3d at 1124, 45 N.Y.S.3d 811;  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.

Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.