IN RE: Mitchell KALWASINSKI (2006)

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 was charged in a misbehavior report with violating the prison disciplinary rules that prohibit engaging in an unhygienic act and interfering with an employee.   According to the misbehavior report, petitioner was observed in his cell holding a cup containing feces and the interior of his cell had been splattered with fecal matter.   As a result, the exercise program was delayed a half hour in order for petitioner's cell to be cleaned.   Petitioner was found guilty of both charges following a disciplinary hearing.   After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

The misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Headley v. Goord, 294 A.D.2d 701, 742 N.Y.S.2d 696 [2002] ).   To the extent that petitioner maintains that the misbehavior report was issued in retaliation for grievances and lawsuits he filed against correction facility employees, this created a credibility issue for the Hearing Officer to resolve (see Matter of Johnson v. Goord, 28 A.D.3d 882, 812 N.Y.S.2d 388 [2006] ).

We also find without merit petitioner's contention that he was denied the right to call witnesses.   The Hearing Officer, through the assistance of a correction officer, made sufficient inquiry into the various inmates' reasons for refusing to testify (see Matter of Hill v. Selsky, 19 A.D.3d 64, 66, 795 N.Y.S.2d 794 [2005];  Matter of Matos v. Goord, 293 A.D.2d 855, 856, 739 N.Y.S.2d 857 [2002] ).   Furthermore, petitioner's request for numerous correctional staff witnesses was properly denied by the Hearing Officer as irrelevant inasmuch as the witnesses had no knowledge of the incident in question (see Matter of Williams v. Goord, 27 A.D.3d 808, 809 N.Y.S.2d 688 [2006];  Matter of Flenon v. Goord, 24 A.D.3d 912, 913, 806 N.Y.S.2d 728 [2005], lv. denied 6 N.Y.3d 710, 814 N.Y.S.2d 599, 847 N.E.2d 1172 [2006] ).   Petitioner's remaining contentions, to the extent they are preserved for our review, are without merit.

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