                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     521798
________________________________

In the Matter of PAUL KAIRIS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
JOSEPH T. SMITH, as
   Superintendent of Shawangunk
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   June 6, 2016

Before:   Lahtinen, J.P., Garry, Rose, Devine and Aarons, JJ.

                             __________


     Paul Kairis, Wallkill, 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 Columbia County)
to review a determination of respondent finding petitioner guilty
of violating certain prison disciplinary rules.

      Petitioner confronted a female correction officer after he
missed the call out for the morning meal run. He proceeded to
shout at the officer in the presence of other inmates and called
her a liar. As a result, he was charged in a misbehavior report
with harassment, creating a disturbance and being out of place.
Following a tier II disciplinary hearing, he was found guilty of
the former two charges, but not guilty of the third. The
determination was later affirmed on administrative appeal and
this CPLR article 78 proceeding ensued.
                              -2-                521798

      We confirm. The misbehavior report, together with the
testimony of the correction officer who prepared it, provide
substantial evidence supporting the determination of guilt (see
Matter of Lewis v Fischer, 112 AD3d 1194, 1195 [2013]; Matter of
Vigliotti v Bell, 52 AD3d 1064 [2008]). The contrary testimony
of petitioner and his inmate witnesses presented a credibility
issue for the Hearing Officer to resolve (see Matter of Connelly
v Griffin, 101 AD3d 1211, 1212 [2012]; Matter of Hale v Selsky,
57 AD3d 1136, 1137 [2008], appeal dismissed 12 NY3d 776 [2009]).
Moreover, we find no merit to petitioner's claim that the
misbehavior report was not properly endorsed in accordance with
the requirements of 7 NYCRR 251-3.1 (b) given that the other
correction officers who were present in the area did not hear the
confrontation and, consequently, did not have personal knowledge
of the facts (see Matter of Nieves v Annucci, 123 AD3d 1368, 1369
[2014]; Matter of Nunez v Unger, 93 AD3d 986, 987 [2012]).
Contrary to petitioner's claim, the misbehavior report contained
sufficient detail to apprise him of the charges to enable him to
prepare a defense (see Matter of Ayala v Fischer, 107 AD3d 1191,
1192 [2013]; Matter of Watson v New York State Dept. of
Correctional Servs., 82 AD3d 1435, 1436 [2011]). Petitioner's
contention that the Hearing Officer failed to conduct a proper
inquiry into an inmate's refusal to testify is not preserved for
our review given that he acceded to the inmate's refusal at the
hearing and did not object to the Hearing Officer's failure to
undertake a further inquiry (see generally Matter of Tafari v
Selsky, 36 AD3d 982, 983 [2007], lv denied 8 NY3d 809 [2007]).
We have considered petitioner's remaining arguments and find them
to be unpersuasive.

      Lahtinen, J.P., Garry, Rose, Devine and Aarons, JJ.,
concur.
                              -3-                  521798

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
