IN RE: Neal FALKENSTEIN

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Neal FALKENSTEIN, Petitioner, v. Glenn S. GOORD, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.

Decided: December 24, 1997

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and CARPINELLO, JJ. Neal Falkenstein, Sonyea, in person. Dennis C. Vacco, Attorney-General (Wayne L. Benjamin, of counsel), Albany, for respondents.

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 certain prison disciplinary rules.

Substantial evidence supports the determination finding petitioner guilty of violating prison disciplinary rules prohibiting inmates from possessing controlled substances (7 NYCRR 270.2[B][14][iii] ) and unauthorized medications (7 NYCRR 270.2[B][14][v] ).  Petitioner admitted his guilt to the latter charge and, as to the former, the detailed misbehavior report and petitioner's own testimony adequately establish that correction officers found several pills of prescribed medication (i.e., controlled substances) on petitioner's person during a pat frisk.   Petitioner's explanation in defense of the charge, that the pills were to be given to another inmate who was extorting him, lacked evidentiary support but, in any event, presented a credibility issue for the Hearing Officer to resolve (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   The procedural issues advanced by petitioner have been examined and found to be either unpreserved for our review or lacking in merit.

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

MEMORANDUM DECISION.

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