                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   518808
________________________________

In the Matter of RICHARD
   RIVERA,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

COMMISSIONER OF DOCS,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Lahtinen, J.P., Garry, Egan Jr., Devine and Clark, JJ.

                             __________


     Richard Rivera, Dannemora, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Clinton County)
to review a determination of respondent which found petitioner
guilty of violating certain prison disciplinary rules.

      Petitioner, an inmate, was found with two pills, later
determined to be 800 mg each of Neurontin, in his pocket. He was
charged in a misbehavior report with unauthorized possession of
medication and smuggling. A search of his cell shortly
thereafter disclosed unauthorized items including 165 postage
stamps, 14 pills later determined to be Neurontin (three were 300
mg and 11 were 800 mg), 32 packs of cigarettes, and 20 packages
of tobacco. He was charged in a second misbehavior report with
possession of unauthorized medication, possession of excessive
quantities of stamps and tobacco, and smuggling. After a
hearing, he was found not guilty of the smuggling charges but
                              -2-                518808

guilty of the remaining charges, and a penalty was imposed.
After an unsuccessful administrative appeal, petitioner commenced
this CPLR article 78 proceeding.

      We confirm. The detailed misbehavior reports and
documentary evidence provide substantial evidence of petitioner's
guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990];
Matter of McKinley v Goord, 40 AD3d 1280, 1280 [2007], lv denied
9 NY3d 807 [2007]). The record reflects that the facility nurse
identified all of the pills as Neurontin and indicated that the
800 mg pills had been prescribed to petitioner for pain
medication but were required to be administered by nursing staff
and taken when given, but that petitioner had no order for the
300 mg pills (see 7 NYCRR 1010.4 [d]). Petitioner's testimony
that he was authorized "not to tak[e] it sometimes" did not
establish that he was permitted to possess and carry the pills,
nor establish any authorization for the 300 mg pills (see Matter
of Hoskins v Fischer, 49 AD3d 1009, 1009-1010 [2008], lv denied 9
NY3d 807 [2007]). Further, while petitioner's challenge to the
proof of the value of the stamps was preserved, having been
raised on his administrative appeal (see Matter of Pine v
Fischer, 118 AD3d 1196, 1197 [2014], lv denied 24 NY3d 904
[2014]), it lacks merit. Rule 113.16 prohibits possession of
stamps exceeding $22.50 in value, and the record contains
documentary evidence revealing a violation (see 7 NYCRR 270.2 [B]
[14] [vi]). Further, while there are gaps in the hearing
transcript, we do not find that they preclude meaningful review
(see Matter of Merritt v Fischer, 108 AD3d 993, 994-995 [2013]).
Petitioner's remaining claims also lack merit.

      Lahtinen, J.P., Garry, Egan Jr., Devine and Clark, JJ.,
concur.
                              -3-                  518808

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
