| Matter of Gawlik v Fischer |
| 2008 NY Slip Op 03275 [50 AD3d 1282] |
| April 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Aaron Gawlik, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which found petitionerguilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possession of a controlled substance, useof a controlled substance and possession of unauthorized medication. The report was issued afterpetitioner, while in the course of being treated for seizure-like activity, stated that he had smokedsome marihuana and ingested certain medication that he received from another inmate and forwhich it was subsequently determined that petitioner had no prescription. At the conclusion of atier III disciplinary hearing, petitioner was found guilty of all three charges. That determinationwas affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulmentensued.
We confirm. Contrary to petitioner's assertion, the misbehavior report, along with testimonyadduced at the hearing, comprise substantial evidence to support the determination of guilt (see Matter of Tafari v Selsky, 45 AD3d1139, 1139 [2007]). Petitioner's exculpatory statements created credibility issues to beresolved by the Hearing Officer (seeMatter of Vigliotti v Selsky, 45 AD3d 946, 946-947 [2007], lv denied 10 NY3d702 [2008]). Petitioner's remaining [*2]contentions, to the extentnot specifically addressed herein, have been examined and found to be unavailing.
Peters, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.