Kae v. Bezio
| Decision Date | 23 December 2010 |
| Parties | In the Matter of David KAE, Petitioner, v. Norman R. BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent. |
| Court | New York Supreme Court — Appellate Division |
79 A.D.3d 1496
In the Matter of David KAE, Petitioner,
v.
Norman R. BEZIO, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Supreme Court, Appellate Division, Third Department, New York.
Dec. 23, 2010.
David Kae, Attica, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: CARDONA, P.J., SPAIN, MALONE JR., McCARTHY and GARRY, JJ.
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 A.D.3d 1365, 1366, 901 N.Y.S.2d 722 [2010]; Matter of Pedraza v. Fischer, 65 A.D.3d 1434, 1435, 886 N.Y.S.2d 237 [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 A.D.2d 677, 728 N.Y.S.2d 210 [2001]; Matter of Matthews v. Goord, 275 A.D.2d 841, 841, 713 N.Y.S.2d 510 [2000]; see also Matter of Billue v. Goord, 28 A.D.3d 845, 845-846, 812 N.Y.S.2d...To continue reading
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