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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Dayquan JOHNSON, Petitioner, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: May 24, 2007

Before:  MERCURE, J.P., CREW III, PETERS, ROSE and LAHTINEN, JJ. Dayquan Johnson, New York City, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Wayne L. Benjamin 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 certain prison disciplinary rules.

Petitioner, an inmate, was charged in a misbehavior report with engaging in a sexual act and committing an unhygienic act.   Following a tier III disciplinary hearing, petitioner was found guilty of both charges.   After exhausting his administrative remedies, petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm.   The misbehavior report, related documentation and hearing testimony comprise substantial evidence in support of respondent's determination (see Matter of Abdul-Khaliq v. Goord, 34 A.D.3d 872, 872, 822 N.Y.S.2d 742 [2006];  Matter of Powell v. Goord, 34 A.D.3d 876, 877, 823 N.Y.S.2d 579 [2006] ).   The fact that petitioner's conduct was unwitnessed does not require annulment of the determination, as circumstantial evidence and reasonable inferences drawn therefrom formed a sufficient basis for the finding of guilt (see Matter of Gourdine v. Goord, 18 A.D.3d 1045, 1045-1046, 795 N.Y.S.2d 772 [2005];  Matter of Carter v. Goord, 8 A.D.3d 771, 772, 778 N.Y.S.2d 234 [2004] ).   Moreover, contrary to petitioner's contentions, the substance found on the floor was properly identified through common observation (see Matter of Williams v. Ricks, 285 A.D.2d 779, 779, 732 N.Y.S.2d 111 [2001] ), and there was no requirement that it be subjected to DNA testing (see Matter of Jackson v. Smith, 6 A.D.3d 1016, 1017, 775 N.Y.S.2d 611 [2004], lv. denied 3 N.Y.3d 667, 784 N.Y.S.2d 4, 817 N.E.2d 821 [2004] ).

To the extent preserved, petitioner's remaining claims have been considered and found to be without merit.

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



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