Matter of Faulks v Fischer

Matter of Faulks v Fischer 2015 NY Slip Op 02163 Decided on March 19, 2015 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: March 19, 2015
519188

[*1]In the Matter of HARVEY FAULKS, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: January 20, 2015
Before: Peters, P.J., McCarthy, Rose and Lynch, JJ.

Harvey Faulks, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of possessing alcohol. The misbehavior report relates that petitioner appeared to be intoxicated — acting in an animated manner, talking loudly and slurring his speech — and, upon smelling an empty orange juice bottle recovered from petitioner's cell, the reporting correction officer detected the odor of alcohol. The misbehavior report and interdepartmental communication provide substantial evidence to support the determination of guilt (see Matter of Hayes v Fischer, 123 AD3d

1266, 1266 [2014]; Matter of Rivera v Goord, 2 AD3d 922, 922 [2003]). Contrary to petitioner's contention, no "scientific testing of the substance was required inasmuch as the nature of alcoholic beverages is a matter of common knowledge" (Matter of Ramos v Bennett, 276 AD2d 1008, 1008 [2000]; see Matter of Hernandez v Selsky, 62 AD3d 1177, 1178 [2009]).

Peters, P.J., McCarthy, Rose and Lynch, JJ., concur.

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