                          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
