Matter of Rodriguez v Fischer

Matter of Rodriguez v Fischer 2013 NY Slip Op 07230 Decided on November 7, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 7, 2013
515905

[*1]In the Matter of RAYMOND RODRIGUEZ, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: September 18, 2013
Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.


Raymond Rodriguez, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondent.


MEMORANDUM AND JUDGMENT

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with conspiring to introduce drugs into the facility, violation of package room procedures and unauthorized exchange after he admitted to having agreed to receive a package for another inmate and that package was found to contain marihuana. Following a tier III disciplinary hearing, petitioner was found guilty of all charges and that determination was affirmed on administrative appeal. Thereafter, he commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, hearing testimony, supporting documentation, including positive drug tests, and confidential testimony and documents provide substantial evidence to support the determination of guilt (see Matter of Carrero v Fischer, 106 AD3d 1299, 1299 [2013]; Matter of Janis v Prack, 106 AD3d 1297, 1297 [2013], lv denied 21 NY3d 864 [2013]). Petitioner's contention that he did not know that the package was to have contained marihuana presented a credibility question to be determined by the Hearing Officer (see Matter of Fernandez v Fischer, 105 AD3d 1287, 1288 [2013]; Matter of Glod v Fischer, 98 AD3d 1173, 1174 [2012]). Petitioner's further contention that he could not be found guilty of the charges [*2]because he never took possession of the package is unavailing, inasmuch as conspiracy or attempt to violate a disciplinary rule will subject an inmate to the same degree of liability as an actual violation (see 7 NYCRR 270.3 [b]; Matter of Matthews v Fischer, 95 AD3d 1529, 1530 [2012]). Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ., concur.

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