Smith v. Venettozzi

• Decision Date: 15 December 2016
• Citation: 145 A.D.3d 1277,44 N.Y.S.3d 233,2016 N.Y. Slip Op. 08405
• Parties: In the Matter of Kenneth SMITH, Petitioner, v. Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1277

44 N.Y.S.3d 233

2016 N.Y. Slip Op. 08405

In the Matter of Kenneth SMITH, Petitioner,

v.Donald VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 15, 2016.

Kenneth Smith, Comstock, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, LYNCH, MULVEY and AARONS, 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 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 controlled substances. Following a tier III disciplinary hearing, he was found guilty of the charge and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and testimony of its author who performed the tests, as well as the positive test results and related documents, provide substantial evidence supporting the determination of guilt (see Matter of Benitez v. Annucci, 139 A.D.3d 1215, 1215, 29 N.Y.S.3d 831 [2016] ). A facility nurse who reviewed petitioner's medical records testified that, contrary to his claim, none of the medications that petitioner was taking at the time of the test would have produced a positive test result, creating a credibility question for the Hearing Officer to resolve (see Matter of Coons v. Fischer, 106 A.D.3d 1302, 1303, 964 N.Y.S.2d 778 [2013] ). Any error in the testing officer contacting facility medical staff about petitioner's medications just before the hearing, rather than immediately after the positive test results, had no bearing on the outcome. As the nurse and testing officer testified, petitioner's request to call the officer who collected the specimen to testify about why facility medical staff were not contacted earlier was properly denied as irrelevant (see Matter of Jones v. Fischer, 138 A.D.3d 1294, 1295, 31 N.Y.S.3d 228 [2016] ).

Petitioner claims that the reason for the urinalysis test was invalid and did not comply with 7 NYCRR 1020.4(a). The request for urinalysis form stated that the request was based upon an "[o]ngoing investigation into drug activity inside [the] facility," although petitioner was told that it was based upon "suspicion," which was circled on the...