IN RE: George CHAVIS (2007)

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 A.D.3d 921, 921, 829 N.Y.S.2d 280 [2007];  Matter of Reyes v. Selsky, 32 A.D.3d 1118, 1119, 821 N.Y.S.2d 477 [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 A.D.3d 1124, 1124-1125, 826 N.Y.S.2d 852 [2007];  Matter of Kalwasinski v. Goord, 31 A.D.3d 1081, 1082, 819 N.Y.S.2d 200 [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 A.D.3d 606, 608, 799 N.Y.S.2d 636 [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 A.D.3d 887, 887-888, 829 N.Y.S.2d 269 [2007];  Matter of Tafari v. Selsky, 31 A.D.3d 1087, 1088, 819 N.Y.S.2d 349 [2006], lv. denied 7 N.Y.3d 717, 826 N.Y.S.2d 606, 860 N.E.2d 68 [2006] ).

Petitioner's remaining arguments lack merit.

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