State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 12, 2016 521512
________________________________
In the Matter of HENRY BENITEZ,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: March 29, 2016
Before: Peters, P.J., McCarthy, Egan Jr., Devine and Mulvey, JJ.
__________
Henry Benitez, Romulus, 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 respondent finding petitioner guilty of
violating a prison disciplinary rule.
After a sample of his urine twice tested positive for the
presence of cannabinoids, petitioner was charged in a misbehavior
report with using a controlled substance. Following a tier III
disciplinary hearing, petitioner was found guilty of the charge,
and the determination was later affirmed on administrative
appeal. Petitioner thereafter commenced this CPLR article 78
proceeding.
Initially, we note that petitioner's challenge to the
sufficiency of the urinalysis test results raises a question of
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substantial evidence and, therefore, the matter was properly
transferred to this Court (see Matter of Crosby v Goord, 38 AD3d
1110, 1110 [2007]). Turning to the merits, the misbehavior
report, positive urinalysis test results and related
documentation, together with the testimony adduced at the
hearing, provide substantial evidence supporting the
determination of guilt (see Matter of Williams v Prack, 130 AD3d
1123, 1123 [2015]; Matter of Walker v Annucci, 129 AD3d 1414,
1415 [2015]). Petitioner's contentions that he did not provide a
urine specimen because he suffers from shy bladder syndrome and
that the correction officer who collected petitioner's specimen
allegedly poured an unknown liquid substance into the container
created credibility issues for the Hearing Officer to resolve
(see Matter of Jones v Venettozzi, 114 AD3d 980, 981 [2014];
Matter of White v Fischer, 108 AD3d 891, 892 [2013], lv denied 22
NY3d 853 [2013]). Petitioner's claim that he was improperly
denied a videotape of the production and collection of his
specimen is without merit as the record reveals that no such
videotape existed, and the Hearing Officer cannot be faulted for
failing to produce a videotape that did not exist (see Matter of
Hand v Gardner, 114 AD3d 988, 989 [2014]; Matter of Chavis v
Goord, 58 AD3d 954, 955 [2009]). Petitioner's remaining
contentions are either unpreserved for our review or are lacking
in merit.
Peters, P.J., McCarthy, Egan Jr., Devine and Mulvey, JJ.,
concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court