                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   522836
________________________________

In the Matter of KARRIEM
   VARGAS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Aarons, JJ.

                             __________


     Karriem Vargus, New York City, 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 a prison disciplinary rule.

      Upon being examined by a correctional facility nurse for a
reported medical emergency, petitioner was charged in a
misbehavior report with using an intoxicant. Following a tier
III disciplinary hearing, petitioner was found guilty and that
determination was affirmed upon administrative appeal with a
modified penalty. This CPLR article 78 proceeding ensued.

      We are unpersuaded by petitioner's contention that, because
his urinalysis test was negative, substantial evidence does not
                              -2-                  522836

support the determination of guilt. The record establishes that
the misbehavior report was based upon an examination of
petitioner by the correction facility nurse. The nurse testified
that petitioner's sluggish behavior during the examination and
his vital signs, particularly his pinpoint and fixed pupils,
indicated that petitioner was under the influence of an
intoxicant. We find that the misbehavior report, supporting
documentation, testimony at the hearing, particularly that of the
nurse based upon her experience, examination and observation of
petitioner, are "sufficiently relevant and probative . . . to
constitute substantial evidence" of petitioner's guilt (Matter of
Foster v Coughlin, 76 NY2d 964, 966 [1990] [internal quotation
marks and citation omitted]; see Matter of Panek v Goord, 23 AD3d
966, 967 [2005], lv denied 6 NY3d 709 [2006]; Matter of Eckert v
Selsky, 247 AD2d 728, 729 [1998]). Petitioner's contention that
he was suffering from dehydration, an assertion that the nurse
testified was inconsistent with his pinpoint pupils, created a
credibility issue for the Hearing Officer to resolve (see Matter
of Shepherd v Annucci, 142 AD3d 1244, 1244 [2016]).

      Peters, P.J., McCarthy, Egan Jr., Lynch and Aarons, JJ.,
concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
