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McKoy v. Bezio

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF DONNIE MCKOY, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Mercure, J.P., Rose, Kane, Kavanagh and Garry, JJ.

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with failing to follow a direct order, verbal harassment and possession of contraband. The charges stemmed from the circumstances surrounding a search of petitioner's cell, which uncovered bags containing a green leafy substance -- subsequently testing positive for marihuana -- hidden under petitioner's blanket in the cuff of his robe and in a cigar wrapper. Petitioner was found guilty of all charges following a tier III disciplinary hearing. This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. Contrary to petitioner's contention, multiple tests on the substances recovered did not have to be performed to confirm the initial positive NIK test results (see Matter of Grochulski v Selsky, 305 AD2d 823, 823 [2003]; Matter of Cliff v Kingsley, 293 AD2d 954, 954 [2002]; Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]). To the extent that petitioner raises the issue of substantial evidence, we conclude that the misbehavior report, positive test results and the hearing testimony were sufficient to support the determination of guilt (see Matter of Shepherd v Fischer, 63 AD3d 1473, 1473 [2009]; Matter of Hall v Selsky, 52 AD3d 1078, 1078 [2008]).

Mercure, J.P., Rose, Kane, Kavanagh and Garry, JJ., concur.

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

20091119

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