Matter of Chavis v Goord

Matter of Chavis v Goord 2007 NY Slip Op 08798 [45 AD3d 1063] November 15, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

In the Matter of George Chavis, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

—[*1] George Chavis, Elmira, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner 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 of all charges. The determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report, together with the testimony from the correction officer who authored it, provide substantial evidence to support the determination of guilt (see Matter of Rosario v Selsky, 37 AD3d 921, 921 [2007]; Matter of Reyes v Selsky, 32 AD3d 1118, 1119 [2006]). Regarding petitioner's assertion that the report was written in retaliation for his filing of a grievance, this created a credibility issue for resolution by the Hearing Officer which we decline to disturb (see Matter of Rizzuto v Goord, 36 AD3d 1124, 1124-1125 [2007]; Matter [*2]of Kalwasinski v Goord, 31 AD3d 1081, 1082 [2006]).

The Hearing Officer properly permitted a witness to testify by speaker phone, as the regulations do not require physical presence at a disciplinary hearing (see Matter of Davis v Goord, 21 AD3d 606, 608 [2005]). Petitioner was not justified in his refusal to appear at the hearing without the presence of this witness. Two correction officers testified concerning petitioner's refusal to attend the remainder of the hearing or sign the corresponding form despite knowledge that the hearing would continue in his absence, thereby establishing petitioner's forfeiture of his right to be present (see Matter of Tafari v Selsky, 37 AD3d 887, 887-888 [2007]; Matter of Tafari v Selsky, 31 AD3d 1087, 1088 [2006], lv denied 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 is confirmed, without costs, and petition dismissed.