| Matter of Kae v Bezio |
| 2010 NY Slip Op 09437 [79 AD3d 1496] |
| December 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of David Kae, Petitioner, v Norman R. Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
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 Serviceswhich found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was initially unable to provide a urine specimen when ordered to submit to a randomdrug test. He was then escorted to a holding pen where he was to be given three hours to submit aurine specimen and provided an eight-ounce glass of water each hour. After drinking one glass ofwater, petitioner approached the toilet and, while a correction officer was standing nearby, he spit aliquid substance into the cup. The liquid substance was water that petitioner was holding in his mouth.As a result, he was immediately escorted back to his cell and was charged in a misbehavior report withfailing to follow urinalysis testing procedures, refusing a direct order and committing an unhygenic act.Petitioner was found guilty of the charges at the conclusion of a tier III disciplinary hearing and thedetermination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Initially, inasmuch as petitioner admitted to spitting into the cup and pleaded guilty tothe charge of committing an unhygenic act, he is precluded from challenging the determination of guiltwith respect to that charge (see Matter of Key v Fischer, 72 AD3d [*2]1365, 1366 [2010]; Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]). As for theremaining charges, the detailed misbehavior report, together with petitioner's admissions and thereasonable inferences to be drawn therefrom, provide substantial evidence supporting the determinationof guilt (see Matter of Green v Goord, 284 AD2d 677 [2001]; Matter of Matthews vGoord, 275 AD2d 841, 841 [2000]; seealso Matter of Billue v Goord, 28 AD3d 845, 845-846 [2006]). Any omissions from theurinalysis test form did not affect the outcome of the hearing.
Cardona, P.J., Spain, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.