                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522319
________________________________

In the Matter of ALLAH KASIEM,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   Peters, P.J., Garry, Devine, Clark and Mulvey, JJ.

                             __________


     Allah Kasiem, Alden, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      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 the Superintendent of Sullivan
Correctional Facility finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner, an inmate, submitted a written work assignment
to a female instructor that contained sexual language as well as
personal references to the instructor and her family. As a
result, he was charged in a misbehavior report with stalking and
harassment. Following a tier II disciplinary hearing, he was
found guilty of harassment, but not guilty of stalking. The
determination was later affirmed on administrative appeal and
                                 -2-                522319

this CPLR article 78 proceeding ensued.1

      Petitioner's sole contention is that he was improperly
denied an inmate witness whose testimony presumably would have
bolstered his defense that his original written assignment was
switched with the one containing inappropriate references when
the instructor left the room. To that end, he argues that the
Hearing Officer did not inquire into the reason that this inmate
purportedly refused to testify or provide petitioner with a
witness refusal form. Petitioner's argument is belied by the
record, which reveals that the Hearing Officer showed petitioner
a copy of this inmate's refusal form during the hearing. In
addition, the refusal form, which was signed by the inmate, is
part of the hearing record and indicates that he did not wish to
testify because he had "no knowledge whats [sic] going on with
[petitioner's] situation." Furthermore, there is no indication
that this inmate ever agreed to testify. In view of the
foregoing, petitioner was not deprived of his constitutional
right to call witnesses (see Matter of Cortorreal v Annucci, 28
NY3d 54, 59-60 [2016]; Matter of Jamison v Fischer, 119 AD3d
1306, 1306 [2014]; Matter of Tulloch v Fischer, 90 AD3d 1370,
1371 [2011]).

         Peters, P.J., Garry, Devine, Clark and Mulvey, JJ., concur.




     1
        Although Supreme Court improperly transferred the
proceeding to this Court as the verified petition does not raise
the issue of substantial evidence, we nevertheless retain
jurisdiction in the interest of judicial economy (see Matter of
Johnson v Annucci, 141 AD3d 996, 997 n [2016], lv denied 28 NY3d
901 [2016]).
                              -3-                  522319

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
