IN RE: Donnie McKOY

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

IN RE: Donnie McKOY, Petitioner, v. Norman R. BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: November 19, 2009

Before:  MERCURE, J.P., ROSE, KANE, KAVANAGH and GARRY, JJ. Donnie McKoy, Pine City, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet 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 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 A.D.2d 823, 823, 758 N.Y.S.2d 547 [2003];  Matter of Cliff v. Kingsley, 293 A.D.2d 954, 954, 742 N.Y.S.2d 408 [2002];  Matter of Darnell v. Kuhlmann, 145 A.D.2d 852, 853, 536 N.Y.S.2d 187 [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 A.D.3d 1473, 1473, 884 N.Y.S.2d 777 [2009];  Matter of Hall v. Selsky, 52 A.D.3d 1078, 1078, 860 N.Y.S.2d 296 [2008] ).

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

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