IN RE: Walter ELLISON (2000)

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a disciplinary hearing, petitioner, a prison inmate, was found guilty of committing an unhygienic act and interfering with an employee stemming from an incident wherein petitioner threw feces at another inmate.   According to the misbehavior report, a correction officer who was standing in front of petitioner's cell observed another inmate return from the shower and approach petitioner's cell, at which time the inmate was struck with a substance resembling feces.   The incident resulted in a 25-minute delay of the shower program while petitioner was moved to a different cell and the inmate was permitted to take another shower.   Following the determination of his guilt and an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

 We confirm.   In our view, substantial evidence of petitioner's guilt was furnished by the misbehavior report and the testimony of its author indicating that after he witnessed the incident he detected the odor of feces and observed feces particles on the window in front of petitioner's cell (see, Matter of Almonte v. Goord, 261 A.D.2d 684, 690 N.Y.S.2d 757, lv. denied 93 N.Y.2d 818, 697 N.Y.S.2d 565, 719 N.E.2d 926;  Matter of Shabazz v. Selsky, 256 A.D.2d 815, 681 N.Y.S.2d 864, lv. denied 93 N.Y.2d 815, 697 N.Y.S.2d 562, 719 N.E.2d 923;  Matter of Stokes v. Goord, 254 A.D.2d 558, 680 N.Y.S.2d 126, lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 420, 708 N.E.2d 177).   Petitioner's denial of the allegations and the exculpatory testimony provided by an inmate witness merely created a credibility issue for the Hearing Officer to resolve (see, Matter of Polite v. Goord, 258 A.D.2d 795, 684 N.Y.S.2d 445;  Matter of Jenkins v. Coombe, 240 A.D.2d 825, 658 N.Y.S.2d 539).   Moreover, although the misbehavior report incorrectly identified petitioner's cell number, this was merely a technical error which was sufficiently explained at the hearing (see, Matter of Alston v. Great Meadow Correctional Facility, 252 A.D.2d 697, 675 N.Y.S.2d 414;  Matter of Frazier v. Goord, 251 A.D.2d 800, 674 N.Y.S.2d 467, lv. denied 92 N.Y.2d 813, 681 N.Y.S.2d 474, 704 N.E.2d 227).

 Finally, the Hearing Officer's inquiries into petitioner's possible membership in an unauthorized organization were not indicative of bias (see, Matter of Agosto v. Coughlin, 153 A.D.2d 1008, 545 N.Y.S.2d 627) and, in any event, petitioner has failed to demonstrate that the determination of guilt flowed from the alleged bias (see, Matter of Nicholas v. Schriver, 259 A.D.2d 863, 687 N.Y.S.2d 453;  Matter of Lawrence v. Headley, 257 A.D.2d 837, 685 N.Y.S.2d 118).

Petitioner's remaining contentions have been reviewed and found to be lacking in merit.

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

PETERS, J.

MERCURE, J.P., CREW III, SPAIN and GRAFFEO, JJ., concur.