Matter of Harriott v Annucci

Matter of Harriott v Annucci 2015 NY Slip Op 06468 Decided on August 6, 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: August 6, 2015
520096

[*1]In the Matter of ALBERT HARRIOTT, Petitioner,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: June 8, 2015
Before: Peters, P.J., McCarthy, Lynch and Devine, JJ.

Albert Harriott, Elmira, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

After a sample of his urine twice tested positive for the presence of cannabinoids, petitioner was charged in a misbehavior report with drug use. He was found guilty of the charge following a tier III disciplinary hearing, and the determination was affirmed on administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, hearing testimony of its author and positive urinalysis test results provide substantial evidence to support the determination of guilt (see Matter of Epps v Prack, 127 AD3d 1477, 1477 [2015]; Matter of Bussey v Commissioner of Corr. & Community Supervision, 120 AD3d 1471, 1472 [2014]). Petitioner's claim that the report was written in retaliation for prior grievances and lawsuits that he had filed presented a credibility issue for the Hearing Officer to resolve (see Matter of Donah v Prack, 127 AD3d 1538, 1538 [2015]; Matter of Guillory v Annucci, 125 AD3d 1024, 1024-1025 [2015], lv denied 25 NY3d 905 [2015]).

Finally, petitioner challenges the denial of a request for certain documents that he made pursuant to the Freedom of Information Law (see Public Officers Law art 6). Inasmuch as there [*2]is no indication in the record that petitioner has exhausted his administration remedies with respect thereto, our review of the issue is precluded (see Matter of White v State of New York, 117 AD3d 1250, 1250-1251 [2014]). Petitioner's remaining claims have been reviewed and found to be lacking in merit.

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

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