Opinion
533084
03-10-2022
In the Matter of Dwayne WIGGINS, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Dwayne Wiggins, Malone, petitioner pro se. Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Dwayne Wiggins, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: Garry, P.J., Clark, Pritzker, Reynolds Fitzgerald and McShan, JJ.
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 certain prison disciplinary rules.
During a pat frisk of petitioner by a correction officer, four orange sublingual strips were found hidden in his coat, which were turned over to a correction officer who was a certified NARK II tester, and identified by the facility nurse as sublingual suboxone. As a result, petitioner was charged in a misbehavior report with drug possession, possessing contraband and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty as charged, and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony of the correction officers who discovered and transported the contraband, documentary evidence and the memorandum from the facility nurse who identified it as suboxone provide substantial evidence to support the determination of guilt (see Matter of Laliveres v. Annucci, 156 A.D.3d 1106, 1106, 65 N.Y.S.3d 475 [2017] ; Matter of Rivera v. Prack, 138 A.D.3d 1267, 1267–1268, 28 N.Y.S.3d 351 [2016] ). Petitioner's contention that the strips were not properly drug tested lacks merit, as the record establishes that the facility nurse visually identified the contraband as the prescription drug suboxone and, therefore, further drug testing was unnecessary (see 7 NYCRR 1010.4 [d], [e]; Matter of Laliveres v. Annucci, 156 A.D.3d at 1106, 65 N.Y.S.3d 475 ; Matter of Bernard v. Annucci, 148 A.D.3d 1448, 1449, 50 N.Y.S.3d 189 [2017] ; Matter of Lindsay v. Coughlin, 211 A.D.2d 920, 921, 621 N.Y.S.2d 398 [1995] ). Petitioner's claims that the strips were planted in retaliation for him filing grievances, which were found to be without merit, was fully explored at the hearing and created a credibility issue that the Hearing Officer resolved against him (see Matter of Williams v. Venettozzi, 189 A.D.3d 1877, 1879, 138 N.Y.S.3d 675 [2020], lv denied 37 N.Y.3d 902, 2021 WL 2154007 [2021] ). Given that the nurse visually identified the contraband as permitted and there were no positive contraband test results, there was no requirement to serve the contraband test forms on petitioner (see 7 NYCRR 1010.5 [a], [b]; 1010.8[a], [b]; Matter of Campbell v. Prack, 118 A.D.3d 1202, 1203, 986 N.Y.S.2d 896 [2014] ). Finally, petitioner's challenge to the timeliness of the hearing, for which extensions were granted, was not raised at the hearing and is, therefore, unpreserved for our review (see Matter of Bonds v. Annucci, 193 A.D.3d 1204, 1206, 146 N.Y.S.3d 341 [2021] ). Petitioner's remaining contentions, to the extent preserved for our review, also lack merit.
Garry, P.J., Clark, Pritzker, Reynolds Fitzgerald and McShan, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.