                          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.

                             __________


     Harvey Faulks, 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 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
