                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 22, 2016                   522723
________________________________

In the Matter of JAMES R.
   MERCER JR.,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
DONALD VENETTOZZI, as Acting
   Director of Special Housing
   and Inmate Disciplinary
   Programs,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ.

                             __________


     James R. Mercer Jr., Collins, 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.

      Petitioner was ordered to submit a urine specimen for
testing, and it twice tested positive for the presence of
cannabinoids. As a result, he was charged in a misbehavior
report with violating the disciplinary rule that prohibits the
use of any controlled substances. Following a tier III
disciplinary hearing, petitioner was found guilty of using a
controlled substance, and that determination was affirmed upon
                                -2-                522723

administrative appeal with modified penalties.    This CPLR article
78 proceeding ensued.1

      We confirm. Upon reviewing the record, we find no merit to
petitioner's contention that he was improperly denied a witness.
Petitioner did not request that any potential witnesses be
interviewed prior to the hearing (see Matter of Letizia v Graham,
119 AD3d 1296, 1297 [2014], lv denied 24 NY3d 912 [2015]; Matter
of Dillard v Fischer, 98 AD3d 761, 762 [2012]), and our review of
the hearing transcript reveals that petitioner failed to make a
request at the hearing for the testimony of the doctor from the
facility where he received medical treatment (see Matter of
Laliveres v Prack, 136 AD3d 1082, 1083 [2016]; Matter of Dillard
v Fischer, 98 AD3d at 762; Matter of Hamilton v Prack, 95 AD3d
1512, 1513 [2012]). Furthermore, at the conclusion of the
hearing, petitioner indicated that he did not wish to request
testimony from any other witnesses (see Matter of Lewis v
Fischer, 101 AD3d 1317, 1317 [2012]; Matter of Carota v Goord,
285 AD2d 676, 677 [2001], lv denied 97 NY2d 603 [2001]). We have
considered petitioner's remaining arguments and find them to be
lacking in merit.

        Lynch, J.P., Rose, Devine, Mulvey and Aarons, JJ., concur.




    1
        While the verified petition does not appear to raise a
question of substantial evidence thereby rendering the transfer
of this proceeding improper, we nevertheless retain jurisdiction
and address the merits in the interest of judicial economy (see
Matter of Allen v Venettozzi, 139 AD3d 1208, 1208 n [2016]).
                              -3-                  522723

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
