                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     520062
________________________________

In the Matter of SAMUEL WEEKES,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Program,
                    Respondent.
________________________________


Calendar Date:   May 5, 2015

Before:   Peters, P.J., Lahtinen, Lynch and Devine, JJ.

                               __________


     Samuel Weekes, Marcy, petitioner pro se.

      Eric T. Schneiderman, 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 St. Lawrence
County) to review a determination of the Commissioner of
Corrections and Community Supervision which found petitioner
guilty of violating a prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
committing an unhygienic act after a search of his cell allegedly
uncovered the fingertip of a latex glove filled with urine.
Following a tier III disciplinary hearing, petitioner was found
guilty and that determination was affirmed upon administrative
appeal. This CPLR article 78 proceeding ensued.

      The misbehavior report and testimony from the correction
officer that petitioner, in fact, admitted that the liquid was
                              -2-                  520062

urine provides substantial evidence to support the determination
of guilt (see Matter of Haughey v Artus, 108 AD3d 956, 956
[2013]; Matter of Dushane v Fischer, 102 AD3d 1043, 1043 [2013]).
Although petitioner testified that the substance was water and
denied that he made any incriminating admission to the correction
officer, this created a credibility issue for the Hearing Officer
to resolve (see Matter of Silverstein v Bezio, 65 AD3d 1424, 1425
[2009]). To the extent that petitioner asserts that there was a
violation of Department of Corrections and Community Supervision
Directive No. 4910A (VII) (c) because the substance was
improperly destroyed before the conclusion of the hearing,
petitioner has failed to preserve this issue for this Court's
review by not raising it at the hearing or on administrative
appeal (see Matter of Cayenne v Goord, 16 AD3d 782, 783 [2005]).
Were we to consider such issue, we would find petitioner's
reliance on Matter of Clark v Fischer (114 AD3d 1116 [2014]) to
be misplaced, as the correction officer here testified that
petitioner admitted that the liquid was urine.

     Peters, P.J., Lahtinen, Lynch and Devine, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
