Matter of Simmons v. Venettozzi , 153 A.D.3d 1016 ( 2017 )

Matter of Simmons v Venettozzi (2017 NY Slip Op 06035)

Matter of Simmons v Venettozzi

2017 NY Slip Op 06035

Decided on August 3, 2017

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: August 3, 2017

524138

[*1]In the Matter of LEON SIMMONS, Petitioner,

v

DONALD VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.

Calendar Date: June 12, 2017
Before: Garry, J.P., Lynch, Devine, Aarons and Pritzker, JJ.

Leon Simmons, Ogdensburg, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents.

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.

While responding to a medical emergency, a correction sergeant observed petitioner to be acting in an unusual manner, then become unresponsive and begin vomiting. Petitioner was taken to the facility infirmary and later to the hospital, but no medical reason for his condition was identified. Based upon his observations and experience, the sergeant 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 using intoxicants, and he was found guilty following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and testimony of the sergeant who observed petitioner and that of the nurse who reviewed his medical records, both of whom opined that petitioner was under the influence of some type of intoxicant, provide substantial evidence supporting the determination of guilt (see Matter of Vargus v Annucci, 147 AD3d 1124, 1125 [2017]; see also Matter of Panek v Goord, 23 AD3d 966, 967 [2005], lv denied 6 [*2]NY3d 709 [2006]). The absence of positive urinalysis test results is not dispositive here (see Matter of Vargus v Annucci, 147 AD3d at 1124; see also Matter of Panek v Goord, 23 AD3d at 967). We have considered petitioner's remaining contentions and find that they are either unpreserved for our review or are lacking in merit.

Garry, J.P., Lynch, Devine, Aarons and Pritzker, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.