Opinion
526390
04-23-2020
In the Matter of Anthony PEREZ, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Anthony Perez, Cape Vincent, petitioner pro se. Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Anthony Perez, Cape Vincent, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
After his urine twice tested positive on two separate dates for the presence of THC–50 during random drug tests, petitioner was charged in two misbehavior reports with using a controlled substance. Following separate tier III disciplinary hearings, petitioner was found guilty of drug use in two determinations, dated May 31, 2017 and June 26, 2017. The determinations were affirmed on administrative review, and this CPLR article 78 proceeding ensued.
Initially, the Attorney General has advised this Court that the June 26, 2017 determination has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $5 surcharge has been refunded to petitioner's inmate account. To the extent that petitioner seeks to be restored to the status that he enjoyed prior to the June 2017 disciplinary determination, he is not entitled to such relief (see Matter of Black v. Annucci, 179 A.D.3d 1371, 1372, 114 N.Y.S.3d 736 [2020] ; Matter of Ortiz v. Venettozzi, 167 A.D.3d 1200, 1200, 87 N.Y.S.3d 909 [2018] ). As petitioner has received all the relief to which he is entitled with regard to this determination, that part of the petition challenging said determination must be dismissed as moot (see Matter of Nelson v. Annucci, 165 A.D.3d 1339, 1340, 85 N.Y.S.3d 608 [2018] ; Matter of Taylor v. Katz, 6 A.D.3d 836, 837, 773 N.Y.S.2d 915 [2004] ).
With regard to the May 31, 2017 determination, the misbehavior report, positive EMIT test results and related documentation, together with the hearing testimony of the correction officer who tested the sample, provide substantial evidence supporting the determination of guilt (see Matter of Ayuso v. Venettozzi, 170 A.D.3d 1407, 1407, 96 N.Y.S.3d 705 [2019] ; Matter of McKanney v. Annucci, 170 A.D.3d 1354, 1354, 95 N.Y.S.3d 652 [2019] ). Contrary to petitioner's contention, the Hearing Officer did not improperly deny him copies of the test results of the inmate who most recently tested positive for THC–50 before the testing of petitioner's specimen or the results of all of the inmates tested on that day, as such evidence was irrelevant to the charge against petitioner (see Matter of Williams v. Annucci, 140 A.D.3d 1498, 1499 [2016] ; Matter of Pujals v. Fischer, 87 A.D.3d 767, 767, 928 N.Y.S.2d 867 [2011] ; Matter of McCorkle v. Bennett, 8 A.D.3d 918, 919, 779 N.Y.S.2d 623 [2004] ). Petitioner's remaining contentions are either unpreserved or lacking in merit.
Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ., concur.
ADJUDGED that the portion of the petition challenging the determination dated June 26, 2017 is dismissed, as moot, without costs.
ADJUDGED that the determination dated May 31, 2017 is confirmed, without costs, and petition dismissed to that extent.