| Matter of Sorrentino v Fischer |
| 2010 NY Slip Op 08038 [78 AD3d 1354] |
| November 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Bernard Sorrentino, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
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 ofviolating a prison disciplinary rule.
A random search of petitioner's prison cell revealed two shampoo bottles filled with a clear liquidcontaining orange peels and a white substance at the bottom. When the liquid was determined to befermenting alcohol, petitioner was served with a misbehavior report and, following a tier III disciplinaryhearing, he was found guilty of possessing alcohol. After an unsuccessful administrative appeal,petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, along with the testimony of the correction officer whodetermined that the substance was alcohol and petitioner's testimony that the bottles belonged to him,provide substantial evidence to support the determination of guilt (see Matter of Hernandez v Selsky, 62 AD3d 1177, 1178 [2009];Matter of Collins v Goord, 272 AD2d 703 [2000]). It was not necessary for the substance tobe scientifically tested to substantiate petitioner's guilt, inasmuch as the nature of alcohol is a matter ofcommon knowledge (see Matter of Hernandez v Selsky, 62 AD3d at 1178; Matter ofCollins v Goord, 272 AD2d at 703). Petitioner's testimony, and that of his cell mate, that thebottles contained shampoo purchased at [*2]the commissary raised anissue of credibility to be resolved by the Hearing Officer (see Matter of Hernandez v Selsky,62 AD3d at 1178; Matter of Ramos v Bennett, 276 AD2d 1008 [2000]).
We have examined petitioner's remaining claims, including his constitutional challenge, and findthem to be either unpreserved or without merit.
Mercure, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.