Matter of Mercer v. Venettozzi , 37 N.Y.S.3d 641 ( 2016 )

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: September 22, 2016 522723 ________________________________ In the Matter of JAMES R. MERCER JR., Petitioner, v MEMORANDUM AND JUDGMENT DONALD VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent. ________________________________ Calendar Date: August 8, 2016 Before: Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ. __________ James R. Mercer Jr., Collins, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent. __________ 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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule. Petitioner was ordered to submit a urine specimen for testing, and it twice tested positive for the presence of cannabinoids. As a result, he was charged in a misbehavior report with violating the disciplinary rule that prohibits the use of any controlled substances. Following a tier III disciplinary hearing, petitioner was found guilty of using a controlled substance, and that determination was affirmed upon -2- 522723 administrative appeal with modified penalties. This CPLR article 78 proceeding ensued.1 We confirm. Upon reviewing the record, we find no merit to petitioner's contention that he was improperly denied a witness. Petitioner did not request that any potential witnesses be interviewed prior to the hearing (see Matter of Letizia v Graham, 119 AD3d 1296, 1297 [2014], lv denied 24 NY3d 912 [2015]; Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]), and our review of the hearing transcript reveals that petitioner failed to make a request at the hearing for the testimony of the doctor from the facility where he received medical treatment (see Matter of Laliveres v Prack, 136 AD3d 1082, 1083 [2016]; Matter of Dillard v Fischer, 98 AD3d at 762; Matter of Hamilton v Prack, 95 AD3d 1512, 1513 [2012]). Furthermore, at the conclusion of the hearing, petitioner indicated that he did not wish to request testimony from any other witnesses (see Matter of Lewis v Fischer, 101 AD3d 1317, 1317 [2012]; Matter of Carota v Goord, 285 AD2d 676, 677 [2001], lv denied 97 NY2d 603 [2001]). We have considered petitioner's remaining arguments and find them to be lacking in merit. Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ., concur. 1 While the verified petition does not appear to raise a question of substantial evidence thereby rendering the transfer of this proceeding improper, we nevertheless retain jurisdiction and address the merits in the interest of judicial economy (see Matter of Allen v Venettozzi, 139 AD3d 1208, 1208 n [2016]). -3- 522723 ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ENTER: Robert D. Mayberger Clerk of the Court