State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 15, 2016 522495
________________________________
In the Matter of KASHIF
McDONALD,
Petitioner,
v
MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: August 8, 2016
Before: McCarthy, J.P., Rose, Devine, Clark and Mulvey, JJ.
__________
Kashif McDonald, East Elmhurst, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco 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 finding petitioner guilty of
violating certain prison disciplinary rules.
During a search of petitioner's cell, a correction officer
found on the ground a honey bottle and a fingertip from a latex
glove, both containing urine. Petitioner was charged with
possessing contraband, committing an unhygienic act and violating
urinalysis procedures. Following a tier III disciplinary hearing
at which the urinalysis procedure charge was dismissed,
petitioner was found guilty of the remaining charges, a
determination that was upheld on administrative appeal. This
CPLR article 78 proceeding ensued.
-2- 522495
We confirm. The documentary evidence and testimony of the
correction officer who conducted the search and authored the
misbehavior report, as well as the report itself, provide
substantial evidence to support the determination of guilt (see
Matter of Boykin v Prack, 137 AD3d 1393, 1394 [2016]). The
Hearing Officer was free to, and did, credit the testimony of the
officer that the bottle and the glove fingertip were not
authorized and that these items contained a liquid he identified
as urine before disposing of them (see Matter of Williams v
Ricks, 285 AD2d 779, 779 [2001]; Matter of Evans v Selsky, 278
AD2d 780, 781 [2000]; Matter of Jenkins v Coombe, 240 AD2d 825,
825 [1997]). His request to call the officer who had served him
with the misbehavior report and who was not present during the
search was properly denied as irrelevant (see Matter of Jackson v
Annucci, 121 AD3d 1483, 1483 [2014]; Matter of Davis v Annucci,
123 AD3d 1279, 1279 [2014]). We have reviewed petitioner's
remaining claims and, to the extent they are preserved for our
review, determined that they also lack merit.
McCarthy, J.P., Rose, Devine, Clark and Mulvey, JJ.,
concur.
-3- 522495
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
ENTER:
Robert D. Mayberger
Clerk of the Court