IN RE: Noel RODRIGUEZ (1998)

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits inmates from possessing controlled substances after heroin and marihuana were discovered hidden inside several candy bars that were contained in a package addressed to him.   Petitioner contends that there is insufficient proof that he possessed the controlled substances because the package was intercepted before he signed for it.   The offense of attempted possession of a controlled substance is punishable to the same extent as the completed offense (see, 7 NYCRR 270.3[b] ), however, we find substantial evidence in the record to establish that petitioner attempted to possess the controlled substances.   The correction officer who authored the misbehavior report and seized the package testified that petitioner admitted that the package belonged to him and that the substances found inside the candy bars tested positive for heroin and marihuana.   Petitioner's conflicting testimony merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Garcia v. Coombe, 233 A.D.2d 655, 649 N.Y.S.2d 834).   The remaining contentions advanced by petitioner were not raised at the disciplinary hearing and are therefore unpreserved for our review and, in any event, without merit.

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

MEMORANDUM DECISION.