Opinion
2011-09-22
In the Matter of Mitchell KALWASINSKI, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
Mitchell Kalwasinski, Romulus, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, complained to correction officers that the water in his cell was not working properly. When an officer informed him that a work order would be submitted, petitioner began banging on his cell and encouraging other inmates to do the same, while shouting obscenities and threats at the officer. As
a result, petitioner was served with a misbehavior report charging him with making threats and disturbing facility order. He was found guilty of those charges following a tier III disciplinary hearing and that determination was affirmed on administrative review, prompting this CPLR article 78 proceeding.
We confirm. The misbehavior report, hearing testimony of the officer present during the incident and the videotape of the incident provide substantial evidence to support the determination of guilt ( see Matter of Abreu v. Fischer, 83 A.D.3d 1348, 1348, 920 N.Y.S.2d 924 [2011]; Matter of Weems v. Fischer, 82 A.D.3d 1454, 1455–1456, 919 N.Y.S.2d 548 [2011] ). Petitioner's testimony and that of his inmate witness that petitioner was not the person yelling at the officer raised a question of credibility to be resolved by the Hearing Officer ( see Matter of Jackson v. Prack, 84 A.D.3d 1660, 1660, 923 N.Y.S.2d 368 [2011]; Matter of Watson v. New York State Dept. of Correctional Servs., 82 A.D.3d 1435, 1435–1436, 919 N.Y.S.2d 545 [2011] ). Petitioner's claims that he was denied certain witnesses and documentary evidence at the hearing are unpreserved for our review based upon his failure to make appropriate objections during the hearing ( see Matter of Barclay v. Knowles, 79 A.D.3d 1550, 1551, 914 N.Y.S.2d 347 [2010]; Matter of Hawkins v. Fischer, 72 A.D.3d 1378, 1379, 898 N.Y.S.2d 532 [2010] ). Finally, the record demonstrates that the finding of guilt resulted from the evidence presented at the hearing, rather than the alleged bias of the Hearing Officer ( see Matter of Weems v. Fischer, 82 A.D.3d at 1456, 919 N.Y.S.2d 548).
We have examined petitioner's remaining contentions and have found them to be either unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
MERCURE, J.P., PETERS, ROSE, KAVANAGH and GARRY, JJ., concur.