IN RE: Benjamin SMALLS (2011)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Superintendent of Shawangunk Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

After a correction officer witnessed petitioner, a prison inmate, carrying a cup of what appeared to be collard greens back to his cell, the officer inquired whether the contents were on the kosher menu and petitioner replied affirmatively.   After discovering that the greens were not on the kosher menu, the officer issued petitioner a misbehavior report charging him with making a false statement and violating mess hall policies.   Petitioner was found guilty following a tier II disciplinary proceeding and that determination was affirmed on administrative appeal.   Petitioner then commenced this CPLR article 78 proceeding.

 We confirm.   The misbehavior report, along with the testimony from the correction officer who authored the report, provide substantial evidence to support the determination of guilt (see Matter of Vaello v. Connolly, 84 A.D.3d 1624, 1625, 923 N.Y.S.2d 313 [2011], appeal dismissed 17 N.Y.3d 854, 930 N.Y.S.2d 548, 954 N.E.2d 1174 [2011];  Matter of Lau v. Artus, 81 A.D.3d 1024, 1025, 917 N.Y.S.2d 344 [2011] ).   Petitioner's claim that the cup merely contained cabbage and hot water presented a credibility determination to be made by the Hearing Officer (see Matter of Cody v. Fischer, 84 A.D.3d 1651, 1651, 923 N.Y.S.2d 910 [2011];  Matter of Jackson v. Prack, 84 A.D.3d 1660, 1660, 923 N.Y.S.2d 368 [2011] ).   Contrary to petitioner's contention, the Hearing Officer did not err in denying several of his requested witnesses, inasmuch as those witness were not present and therefore had no direct knowledge regarding the incident (see Matter of Tafari v. Rock, 82 A.D.3d 1441, 1442, 918 N.Y.S.2d 747 [2011], lv. denied 17 N.Y.3d 702, 929 N.Y.S.2d 92, 952 N.E.2d 1087 [2011];  Matter of Mayo v. Fischer, 82 A.D.3d 1421, 1422, 918 N.Y.S.2d 676 [2011], lv. denied 18 N.Y.3d 702, 2011 WL 2237041 [2011] ).

Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

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