                          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
