O'Reilly v. Goord

Mar 29, 2000
Versions:270 A.D.2d 858
706 N.Y.S.2d 652
2000 N.Y. App. Div. LEXIS 3575

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was found guilty after a Tier III hearing of possessing an alcoholic beverage in violation of inmate rule 113.13 (7 NYCRR 270.2 [B] [14] [iv]). Contrary to petitioner’s contention, the determination is supported by substantial evidence. “The nature of alcoholic beverages is a matter of common knowledge and, therefore, scientific testing is not required” (Matter of Sanchez v Leonardo, 242 AD2d 798). The liquid smelled like an alcoholic beverage to both the correction officers who seized it and the Hearing Officer. Petitioner’s testimony to the contrary presented a credibility issue for the Hearing Officer to resolve (see, Matter of Foster v Coughlin, 76 NY2d 964, 966). Petitioner failed to exhaust his administrative remedies with respect to his contention concerning the chain of custody (see, Matter of Nelson u Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834).

We reject the contention of petitioner that he did not have an opportunity to prepare a proper defense. Although petitioner contends that he was denied the opportunity to present evidence of the results of a urine test, the Hearing Officer took notice of the fact that the results were negative. We reject petitioner’s contention that the cross-examination of a correction officer was unduly curtailed. Finally, although there are gaps in the hearing transcript due to inaudible portions of the tape, those gaps do not preclude meaningful review of petitioner’s contentions, and petitioner has not demonstrated that he was prejudiced thereby (see, Matter of Hinckson v Selsky, 259 AD2d 812, lv dismissed 94 NY2d 782; Matter of Thomas v Coughlin, 145 AD2d 695, 696). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Kane, J.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.