Matter of Kae v Bezio

Matter of Kae v Bezio 2010 NY Slip Op 09437 [79 AD3d 1496] December 23, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

In the Matter of David Kae, Petitioner,
v
Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] David Kae, Attica, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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 initially unable to provide a urine specimen when ordered to submit to a random drug test. He was then escorted to a holding pen where he was to be given three hours to submit a urine specimen and provided an eight-ounce glass of water each hour. After drinking one glass of water, petitioner approached the toilet and, while a correction officer was standing nearby, he spit a liquid 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 with failing 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 the determination 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 to the charge of committing an unhygenic act, he is precluded from challenging the determination of guilt with 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 the remaining charges, the detailed misbehavior report, together with petitioner's admissions and the reasonable inferences to be drawn therefrom, provide substantial evidence supporting the determination of guilt (see Matter of Green v Goord, 284 AD2d 677 [2001]; Matter of Matthews v Goord, 275 AD2d 841, 841 [2000]; see also Matter of Billue v Goord, 28 AD3d 845, 845-846 [2006]). Any omissions from the urinalysis test form did not affect the outcome of the hearing.

Cardona, P.J., Spain, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.