                          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
