MatterofVargasvFischer

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2014
• Docket: 517923
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: October 2, 2014 517923 ________________________________

In the Matter of JOSE VARGAS, Petitioner, v MEMORANDUM AND JUDGMENT

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.

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 -2- 517923

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.

ENTER:

Robert D. Mayberger Clerk of the Court