Opinion
No. CV-24-0650
10-31-2024
In the Matter of Jose Ortiz, Petitioner, v. Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Jose Ortiz, Comstock, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Calendar Date: October 4, 2024
Jose Ortiz, Comstock, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Pritzker, Lynch, Ceresia and Mackey, JJ.
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 Superintendent of Sing Sing Correctional Facility finding petitioner guilty of violating a prison disciplinary rule.
Upon being ordered to search petitioner's prison cell due to a strong scent of alcohol, a correction officer ordered petitioner to step out of his cell and subject himself to a pat frisk. The ensuing search of his cell by that correction officer revealed three gallons of an orange-colored fermented liquid, which the correction officer further inspected and identified as homemade alcohol based upon his 23 years of experience dealing with contraband. As a result of the foregoing, petitioner was charged in a misbehavior report with possessing contraband and possessing an intoxicant. Following a tier II disciplinary hearing, petitioner was found guilty of possessing contraband. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.
The charge of possessing an intoxicant was dismissed because the prison disciplinary rule prohibiting the possession of an intoxicant had previously been rescinded (see 7 NYCRR 270.2 [B] [14] former [iii]; see also 50 NY St Reg, Dec. 16, 2020 at 2).
We confirm. The misbehavior report, documentary evidence and hearing testimony provide substantial evidence to support the determination (see Matter of Clark v Venettozzi, 179 A.D.3d 1376, 1377 [3d Dept 2020]; Matter of Faulks v Fischer, 126 A.D.3d 1197, 1198 [3d Dept 2015]; cf. Matter of Meyers v Fischer, 85 A.D.3d 1480, 1481 [3d Dept 2011]). Contrary to petitioner's claim, "no scientific testing of the substance was required inasmuch as the nature of alcoholic beverages is a matter of common knowledge" (Matter of Clark v Venettozzi, 179 A.D.3d at 1377 [internal quotation marks and citations omitted]; see Matter of Sorrentino v Fischer, 78 A.D.3d 1354, 1355 [3d Dept 2010]). To this point, the correction officer who discovered the liquid in petitioner's cell testified that, based upon his years of experience in identifying alcohol from its appearance and smell, it was unnecessary to test the liquid for alcohol. Petitioner's exculpatory claim that the liquid discovered in his cell was dirty laundry water presented a credibility issue for the Hearing Officer to resolve (see Matter of Sorrentino v Fischer, 78 A.D.3d at 1355; Matter of Silverstein v Bezio, 65 A.D.3d 1424, 1425 [3d Dept 2009]). To the extent that petitioner's remaining claims are properly before us, they have been considered and found to be unavailing.
Garry, P.J., Pritzker, Lynch, Ceresia and Mackey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.