Vargus v. Annucci

• Decision Date: 02 February 2017
• Citation: 45 N.Y.S.3d 811 (Mem),147 A.D.3d 1124,2017 N.Y. Slip Op. 00688
• Parties: In the Matter of Karriem VARGUS, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1124
45 N.Y.S.3d 811 (Mem)
2017 N.Y. Slip Op. 00688

In the Matter of Karriem VARGUS, Petitioner,
v.
Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

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

Feb. 2, 2017.

Karriem Vargus, New York City, petitioner pro se.

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

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County)

45 N.Y.S.3d 812

to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Upon being examined by a correctional facility nurse for a reported medical emergency, petitioner was charged in a misbehavior report with using an intoxicant. Following a tier III disciplinary hearing, petitioner was found guilty and that determination was affirmed upon administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We are unpersuaded by petitioner's contention that, because his urinalysis test was negative, substantial evidence does not support the determination of guilt. The record establishes that the misbehavior report was based upon an examination of petitioner by the correction facility nurse. The nurse testified that petitioner's sluggish behavior during the examination and his vital signs, particularly his pinpoint and fixed pupils, indicated that petitioner was under the influence of an intoxicant. We find that the misbehavior report, supporting documentation, testimony at the hearing, particularly that of the nurse based upon her experience, examination and observation of petitioner, are "sufficiently relevant and probative ... to constitute substantial evidence" of petitioner's guilt (Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] [internal quotation marks and citation omitted]; see Matter of Panek v. Goord, 23 A.D.3d 966, 967, 804 N.Y.S.2d 471 [2005], lv. denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, ...