Matter of Donnie McKoy v Glenn S. Goord

Matter of McKoy v Goord 2005 NY Slip Op 08244 [23 AD3d 807] November 10, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of Donnie McKoy, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

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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 was charged in a misbehavior report with possession of contraband and drugs after a correction officer recovered from his cell a lighter, as well as an empty flex pen and a fork, both which had burn marks and contained residue, which later tested positive for marihuana. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The detailed misbehavior report, together with the testimony of the officer who tested the residue and the positive results, provide substantial evidence supporting the determination of guilt (see Matter of Borges v McGinnis, 307 AD2d 489, 489 [2003], lv denied 100 NY2d 514 [2003]; Matter of Infante v Selsky, 299 AD2d 612, 613 [2002]; Matter of Spulka v Murphy, 276 AD2d 986 [2000], lv denied 96 NY2d 703 [2001]). Petitioner's reliance upon a previous disciplinary determination finding him not guilty of drug possession is misplaced as it involved a totally unrelated incident. His remaining contentions have not been preserved for our review as they were not raised at the hearing and/or in his administrative appeal (see Matter of Cummings v Goord, 10 AD3d 748, 749 [2004]). [*2]

Crew III, J.P., Carpinello, Mugglin, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.