| Matter of Chavis v Goord |
| 2007 NY Slip Op 08798 [45 AD3d 1063] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of George Chavis, Petitioner, v Glenn S. Goord, 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 Chemung County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, was charged in a misbehavior report with possession of contraband,harassment and making threats. Following a tier III disciplinary hearing, he was found guilty ofall charges. The determination was affirmed on administrative appeal, prompting petitioner tocommence this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the testimony from the correction officerwho authored it, provide substantial evidence to support the determination of guilt (see Matter of Rosario v Selsky, 37AD3d 921, 921 [2007]; Matter ofReyes v Selsky, 32 AD3d 1118, 1119 [2006]). Regarding petitioner's assertion that thereport was written in retaliation for his filing of a grievance, this created a credibility issue forresolution by the Hearing Officer which we decline to disturb (see Matter of Rizzuto v Goord, 36AD3d 1124, 1124-1125 [2007]; Matter [*2]of Kalwasinski v Goord, 31AD3d 1081, 1082 [2006]).
The Hearing Officer properly permitted a witness to testify by speaker phone, as theregulations do not require physical presence at a disciplinary hearing (see Matter of Davis v Goord, 21 AD3d606, 608 [2005]). Petitioner was not justified in his refusal to appear at the hearing withoutthe presence of this witness. Two correction officers testified concerning petitioner's refusal toattend the remainder of the hearing or sign the corresponding form despite knowledge that thehearing would continue in his absence, thereby establishing petitioner's forfeiture of his right tobe present (see Matter of Tafari vSelsky, 37 AD3d 887, 887-888 [2007]; Matter of Tafari v Selsky, 31 AD3d 1087, 1088 [2006], lvdenied 7 NY3d 717 [2006]).
Petitioner's remaining arguments lack merit.
Crew III, J.P., Peters, Spain, Rose and Kane, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.