| Matter of Kalwasinski v Bezio |
| 2011 NY Slip Op 00336 [80 AD3d 1068] |
| January 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Mitchell J. Kalwasinski, Petitioner, v NormanBezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
While being escorted to a disciplinary hearing, petitioner tried to kick another inmate whowas seated on a bench nearby. As a result, he was charged in a misbehavior report with theattempted assault of an inmate. He was found guilty of the charge following a tier III disciplinaryhearing. The determination was later affirmed on administrative appeal. This CPLR article 78proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officerwho prepared it as well as that of the other correction officers present at the scene, providesubstantial evidence supporting the determination of guilt (see Matter of Brown v Selsky, 49 AD3d 1108 [2008]; Matter of Peoples v Selsky, 33 AD3d1179, 1180 [2006]; Matter ofHoward v Goord, 9 AD3d 778, 778 [2004], appeal dismissed 3 NY3d 764[2004]). Petitioner's testimony that he did not try to kick the inmate, but rather tripped on acarpet, presented a credibility issue for the Hearing Officer to resolve (see Matter of Martinez v Selsky, 53AD3d 989 [2008]; Matter of Williams v Selsky, 50 [*2]AD3d 1426, 1427 [2008], lv denied 11 NY3d 703 [2008]).Furthermore, we find no merit to petitioner's claim that he was denied a fair hearing inasmuch asthere is no indication in the record that the Hearing Officer was biased or that the determinationat issue flowed from any alleged bias (see Matter of Rivera v Goord, 38 AD3d 964, 964 [2007]; Matter of Porter v Goord, 7 AD3d847, 848 [2004]). Petitioner's remaining contentions either have not been preserved for ourreview or are lacking in merit.
Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.