| Matter of Hernandez v Selsky |
| 2009 NY Slip Op 03976 [62 AD3d 1177] |
| May 21, 2009 |
| Appellate Division, Third Department |
| In the Matter of Octavio Hernandez, Petitioner, v Donald Selsky,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with possession of a fermenting substance. Atier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty and apenalty was imposed. Petitioner's administrative appeal and subsequent request forreconsideration proved unsuccessful, prompting him to commence this CPLR article 78proceeding to challenge the determination of guilt.
The misbehavior report and the testimony of the sergeant who inspected the contents of thethermos found underneath petitioner's bed and determined that it contained a homemadealcoholic beverage constitute substantial evidence of petitioner's guilt (see Matter of Puleciov Goord, 274 AD2d 786 [2000]; Matter of Collins v Goord, 272 AD2d 703 [2000]).Moreover, "because the nature of alcoholic beverages is a matter of common knowledge, the. . . observations that the liquid substance was alcohol rendered scientific testing ofthe liquid unnecessary" (Matter of Reynolds v Goord, 275 AD2d 854, 854 [2000];see Matter of O'Reilly v Goord, 270 AD2d 858 [2000]). To the extent that petitionertestified that the thermos contained only leftover [*2]iced tea andlimes, this presented a credibility issue for the Hearing Officer to resolve (see Matter ofRamos v Bennett, 276 AD2d 1008 [2000]; see also Matter of Nicholson v Goord,303 AD2d 854 [2003]). As for petitioner's claim that he was denied a witness, the record reflectsthat petitioner did not ask to call the author of the misbehavior report as a witness "and theHearing Officer was under no obligation to present petitioner's case for him" (Matter of Retamozzo v New York StateDept. of Correctional Servs., 31 AD3d 1083, 1084 [2006]). Finally, petitioner's claim ofhearing officer bias is unpreserved for our review (see Matter of Johnson v Department of Correctional Servs., 53 AD3d746, 747 [2008]).
Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.