IN RE: Thomas RILEY (2000)

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Correctional Services, dated July 17, 1998, which affirmed a determination of the Superintendent of Green Haven Correctional Facility, dated May 1, 1998, made after a Tier III disciplinary hearing, which found the petitioner guilty of using a controlled substance and violating a family reunion program rule.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

Contrary to the petitioner's contentions, the hearing testimony, the misbehavior report and positive drug tests constitute substantial evidence to support the determination that he was guilty of the charges against him (see, Matter of Abdur-Raheem v. Mann, 85 N.Y.2d 113, 117, 623 N.Y.S.2d 758, 647 N.E.2d 1266;  Matter of Bryant v. Coughlin, 77 N.Y.2d 642, 647, 569 N.Y.S.2d 582, 572 N.E.2d 23;  Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997;  Matter of Da Wen Yu v. Selsky, 249 A.D.2d 474, 671 N.Y.S.2d 666).   The Hearing Officer, as the trier of fact, resolved the issues of credibility, and we find no reason to disturb the determination (see, Matter of Oro v. Keane, 211 A.D.2d 796, 621 N.Y.S.2d 902).

The petitioner's remaining contentions are either unpreserved for review or without merit.

MEMORANDUM BY THE COURT.