State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 14, 2016 521589 

________________________________

In the Matter of ENRIQUE

RIVERA,

Petitioner,

v

MEMORANDUM AND JUDGMENT

DONALD VENETTOZZI, as Acting 

Director of Special Housing

and Inmate Disciplinary 

Programs,

Respondent.

________________________________

Calendar Date: February 23, 2016

Before: McCarthy, J.P., Garry, Lynch and Devine, JJ.

__________

Enrique Rivera, Stormville, 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. 

Correction officials obtained a sample of petitioner's

urine and it twice tested positive for the presence of K2, also

known as synthetic marihuana. As a result, petitioner was

charged in a misbehavior report with violating disciplinary rule

113.3, which prohibits inmates from using alcohol or other

intoxicants (see 7 NYCRR 270.2 [B] [14] [iii]). He was found

guilty of this charge following a tier III disciplinary hearing
-2- 521589 

and the determination was later affirmed on administrative

appeal. This CPLR article 78 proceeding ensued.1

Petitioner's sole contention is that the misbehavior report

did not afford him adequate notice of the charge in accordance

with the requirements of 7 NYCRR 251-3.1 (c). We note that "[a]

misbehavior report is sufficient if it contains the date, time

and place of the offense[], identifies the disciplinary rule[]

alleged to have been violated and specifies the factual basis for

the charge[] with enough particularity to enable the inmate to

prepare a defense" (Matter of Quintana v Selsky, 268 AD2d 624,

625 [2000]; see Matter of Jones v Fischer, 111 AD3d 1362, 1363

[2013]; Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011]). 

Here, the misbehavior report set forth the dates that the urine

specimen was taken and tested and the names of the correction

officers involved, and indicated that the test results were

positive for the presence of K2, which was a violation of

disciplinary rule 113.3, the rule that has been held applicable

to this type of misconduct (see Matter of Roman v Prack, 133 AD3d

959, 960 [2015]; Matter of Ralands v Prack, 131 AD3d 1334, 1335

[2015]). Accordingly, notwithstanding petitioner's claim to the

contrary, we find that the misbehavior report gave petitioner

adequate notice of the charge to enable him to prepare a defense.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.

1 Although the proceeding was improperly transferred to

this Court as the verified petition did not raise the issue of

substantial evidence, we nevertheless retain jurisdiction in the

interest of judicial economy (see Matter of Toliver v New York

State Dept. of Corr. & Community Supervision, 127 AD3d 1536, 1537

n 1 [2015]). 
-3- 521589 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court