                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    517574
________________________________

In the Matter of SAURIO
   RODRIGUEZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   June 9, 2014

Before:   Peters, P.J., Lahtinen, McCarthy, Rose and Lynch, JJ.

                             __________


     Saurio Rodriguez, Attica, 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.

      During a search of petitioner's cell, a correction officer
found a letter to petitioner requesting that he contact another
inmate's mother to set up a drug transaction. Upon being
interviewed, petitioner confirmed that the letter was about
smuggling drugs into the correctional facility. Consequently,
petitioner was charged in a misbehavior report with engaging in
an unauthorized exchange, possessing drugs, smuggling, exchanging
personal identification numbers and violating facility
correspondence procedures. Petitioner was found guilty of the
                              -2-                  517574

charges following a tier III disciplinary hearing and the
determination was affirmed on administrative appeal. This CPLR
article 78 proceeding ensued.

      We confirm. The misbehavior report, confiscated letter and
testimony adduced at the hearing provide substantial evidence
supporting the determination of guilt (see Matter of Moore v
Fischer, 63 AD3d 1401, 1401 [2009]; Matter of Reed v Goord, 16
AD3d 796, 796 [2005]). Petitioner's denial of the charges
presented a credibility issue for the Hearing Officer to resolve
(see Matter of Jones v Prack, 114 AD3d 985, 985 [2014]; Matter of
Ferrer v Prack, 107 AD3d 1254 [2013]). Furthermore, even though
no drugs were actually recovered, a violation of the rules
occurred when petitioner conspired to smuggle drugs into the
facility (see 7 NYCRR 270.3 [b] [2]; Matter of Booker v Fischer,
102 AD3d 1045, 1046 [2013]; Matter of Brown v Fischer, 98 AD3d
778, 779 [2012]). In view of the foregoing, and given that
petitioner's remaining contentions have not been preserved for
our review, we find no reason to disturb the determination of
guilt.

      Peters, P.J., Lahtinen, McCarthy, Rose and Lynch, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
