State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 19, 2015 519188
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In the Matter of HARVEY FAULKS,
Petitioner,
v MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
of Corrections and Community
Supervision,
Respondent.
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Calendar Date: January 20, 2015
Before: Peters, P.J., McCarthy, Rose and Lynch, JJ.
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Harvey Faulks, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.
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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 of violating a prison disciplinary rule.
Petitioner commenced this CPLR article 78 proceeding
challenging a tier III disciplinary determination finding him
guilty of possessing alcohol. The misbehavior report relates
that petitioner appeared to be intoxicated – acting in an
animated manner, talking loudly and slurring his speech – and,
upon smelling an empty orange juice bottle recovered from
petitioner's cell, the reporting correction officer detected the
odor of alcohol. The misbehavior report and interdepartmental
communication provide substantial evidence to support the
determination of guilt (see Matter of Hayes v Fischer, 123 AD3d
-2- 519188
1266, 1266 [2014]; Matter of Rivera v Goord, 2 AD3d 922, 922
[2003]). Contrary to petitioner's contention, no "scientific
testing of the substance was required inasmuch as the nature of
alcoholic beverages is a matter of common knowledge" (Matter of
Ramos v Bennett, 276 AD2d 1008, 1008 [2000]; see Matter of
Hernandez v Selsky, 62 AD3d 1177, 1178 [2009]).
Peters, P.J., McCarthy, Rose and Lynch, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court