                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 18, 2014                   518198
________________________________

In the Matter of KEVIN REESE,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

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


Calendar Date:   August 4, 2014

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

                             __________


     Kevin Reese, Auburn, 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 was charged in a misbehavior report with
possession of drugs, smuggling and violating facility package
procedures after a package addressed to him was found to contain
marihuana concealed in 19 candy bars. Following a tier III
disciplinary hearing, petitioner was found guilty as charged.
Petitioner's administrative appeal was unsuccessful, prompting
this CPLR article 78 proceeding.

      We confirm. The misbehavior report and related
documentation, together with the testimony from the sergeant,
                              -2-                  518198

correction officer and investigator involved in the discovery and
investigation of the incident, provide substantial evidence to
support the determination of guilt (see Matter of Harrison v
Fischer, 104 AD3d 1032, 1032 [2013]; Matter of Booker v Fischer,
102 AD3d 1045, 1046 [2013]; Matter of Boggs v Martuscello, 84
AD3d 1667, 1668 [2011]). Petitioner's testimony to the contrary,
as well as any alleged inconsistencies in the hearing testimony,
presented credibility issues for the Hearing Officer to resolve
(see Matter of Rodriguez v Fischer, 111 AD3d 998, 999 [2013];
Matter of Harrison v Fischer, 104 AD3d at 1032). Furthermore,
petitioner's contention that he was never in possession of the
package containing the drugs does not negate his guilt inasmuch
as "attempts or conspiracies to violate institutional rules of
conduct, or as accessories to rule violations will be punishable
to the same degree as violators of such rules" (7 NYCRR 270.3
[b]). Petitioner's remaining contentions are either without
merit or unpreserved for this Court's review.

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



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
