Matter of George J. Panek v Glenn S. Goord

Matter of Panek v Goord 2005 NY Slip Op 08924 [23 AD3d 966] November 23, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of George J. Panek, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

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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 respondent which found petitioner guilty of violating certain prison disciplinary rules and revoked his participation in a temporary release program.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit consuming alcohol and noncompliance with temporary release program rules. According to the misbehavior report, when petitioner returned from a one-day community service furlough, he had a red face, bloodshot eyes, slurred speech and impaired comprehension and he smelled of alcohol. Two alco-sensor tests were administered resulting in positive readings. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination of guilt.

We are unpersuaded by petitioner's contention that the use of and positive test readings from the alco-sensor, as opposed to a urinalysis test as indicated in the temporary release agreement (see 7 NYCRR 1902.1 [13]), requires that the determination be annulled. Even absent the alco-sensor test readings, the misbehavior report, written by the correction officer who personally observed petitioner's appearance and behavior, together with the testimony at the hearing, provide substantial evidence, standing alone, to support the determination of guilt (see [*2]Matter of Hicks v Selsky, 273 AD2d 584 [2000]; Matter of Ross v Goord, 262 AD2d 904, 905 [1999]). Also unavailing is petitioner's contention that he was improperly denied the right to call various witnesses inasmuch as the record supports the conclusions of the Hearing Officer that such testimony would be either redundant or irrelevant (see Matter of Trammell v Selsky, 10 AD3d 787, 788-789 [2004]). Petitioner's remaining contentions, to the extent they are preserved, have been reviewed and found to be without merit.

Mercure, J.P., Crew III, Spain, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.