Opinion
522723
09-22-2016
In the Matter of JAMES R. MERCER JR., Petitioner, v. DONALD VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
James R. Mercer Jr., Collins, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ.
James R. Mercer Jr., Collins, 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
Petitioner was ordered to submit a urine specimen for testing, and it twice tested positive for the presence of cannabinoids. As a result, he was charged in a misbehavior report with violating the disciplinary rule that prohibits the use of any controlled substances. Following a tier III disciplinary hearing, petitioner was found guilty of using a controlled substance, and that determination was affirmed upon administrative appeal with modified penalties. This CPLR article 78 proceeding ensued.
While the verified petition does not appear to raise a question of substantial evidence thereby rendering the transfer of this proceeding improper, we nevertheless retain jurisdiction and address the merits in the interest of judicial economy (see Matter of Allen v Venettozzi, 139 AD3d 1208, 1208 n [2016]). --------
We confirm. Upon reviewing the record, we find no merit to petitioner's contention that he was improperly denied a witness. Petitioner did not request that any potential witnesses be interviewed prior to the hearing (see Matter of Letizia v Graham, 119 AD3d 1296, 1297 [2014], lv denied 24 NY3d 912 [2015]; Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]), and our review of the hearing transcript reveals that petitioner failed to make a request at the hearing for the testimony of the doctor from the facility where he received medical treatment (see Matter of Laliveres v Prack, 136 AD3d 1082, 1083 [2016]; Matter of Dillard v Fischer, 98 AD3d at 762; Matter of Hamilton v Prack, 95 AD3d 1512, 1513 [2012]). Furthermore, at the conclusion of the hearing, petitioner indicated that he did not wish to request testimony from any other witnesses (see Matter of Lewis v Fischer, 101 AD3d 1317, 1317 [2012]; Matter of Carota v Goord, 285 AD2d 676, 677 [2001], lv denied 97 NY2d 603 [2001]). We have considered petitioner's remaining arguments and find them to be lacking in merit.
Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.