                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   522115
________________________________

In the Matter of MARK K.
   McDERMOTT,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   Peters, P.J., Egan Jr., Rose, Devine and Mulvey, JJ.

                             __________


     Mark K. McDermott, Utica, 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 the course of a pat frisk, a correction officer
found two "pin joints" and a folded piece of white paper
containing a green leafy substance inside the right front pocket
of petitioner's pants. Petitioner provided a written statement
admitting that the items recovered contained K2, also known as
synthetic marihuana. They were tested and returned positive
results for the presence of amphetamines. Consequently,
petitioner was charged in a misbehavior report with possessing
contraband and possessing a controlled substance. He was found
                              -2-                522115

guilty of the charges following a tier III disciplinary hearing
and the determination was upheld on administrative appeal with a
modified penalty. This CPLR article 78 proceeding ensued.

      We confirm. The detailed misbehavior report, related
documentation and testimony of the correction officer who tested
the items recovered, as well as that of the correction sergeant
who obtained petitioner's written statement, provide substantial
evidence supporting the determination of guilt (see Matter of
Reese v Fischer, 120 AD3d 1496, 1497 [2014]; Matter of Curry v
Fischer, 113 AD3d 981, 982 [2014]). Contrary to petitioner's
claim, there is no indication that the correction officer who
tested the items failed to comply with applicable regulations or
the manufacturer's instructions for conducting the tests (see
e.g. Matter of Darnell v Kuhlmann, 145 AD2d 852, 853 [1988]).
Moreover, although petitioner maintained that his written
statement was coerced, this presented a credibility issue for the
Hearing Officer to resolve (see Matter of Weekes v Prack, 129
AD3d 1430, 1431 [2015]; Matter of Gren v Annucci, 119 AD3d 1307,
1308 [2014]). Furthermore, it was not necessary for the testing
officer, who had no involvement in the pat frisk or discovery of
the items recovered and lacked personal knowledge thereof, to
endorse the misbehavior report (see Matter of Sorrentino v
Fischer, 101 AD3d 1210, 1211 [2012], lv denied 20 NY3d 862
[2013]; Matter of Jones v Fischer, 94 AD3d 1298, 1298 [2012]).
We have considered petitioner's remaining contentions and find
that they are either unpreserved for our review or are lacking in
merit.

      Peters, P.J., Egan Jr., Rose, Devine and Mulvey, JJ.,
concur.
                              -3-                  522115

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
