Matter of Vargas v Fischer

Matter of Vargas v Fischer 2014 NY Slip Op 06623 Decided on October 2, 2014 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: October 2, 2014
517923

[*1]In the Matter of JOSE VARGAS, Petitioner,

v

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

Calendar Date: August 4, 2014
Before: Lahtinen, J.P., Stein, Garry, Lynch and Devine, JJ.

Jose Vargas, Coxsackie, 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, commenced this CPLR article 78 proceeding to challenge a disciplinary determination finding him guilty of making threats and engaging in violent conduct. The misbehavior report and hearing testimony of a correction officer who heard petitioner make threatening comments after undergoing a pat frisk constitute substantial evidence to support the determination of guilt (see Matter of Evans v Fischer, 116 AD3d 1329, 1330 [2014]; Matter of Connelly v Griffin, 101 AD3d 1211, 1212 [2012]). Petitioner denied that he made any threats, but this contrary testimony presented a credibility issue for the Hearing Officer to resolve (see id.). Petitioner's remaining arguments, to the extent they are properly before us, have been considered and found to lack merit.

Lahtinen, J.P., Stein, Garry, Lynch and Devine, JJ., concur.

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