| Matter of Kalwasinski v Fischer |
| 2011 NY Slip Op 06436 [87 AD3d 1187] |
| September 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of Mitchell Kalwasinski, Petitioner, v BrianFischer, as Commissioner of Correctional Services, Respondent. (And Another RelatedProceeding.) |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceedings pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
While correction officers were closing petitioner's cell door, he turned and spit, hitting anofficer in the left side of his face, and he warned that every time the officer opened the gate, hewould "get it." As a result, petitioner was served with a misbehavior report charging him withmaking threats and committing an unhygienic act. Following a tier III disciplinary hearing, hewas found guilty of both charges. That determination was administratively affirmed, followingwhich petitioner commenced a CPLR article 78 proceeding.
Following a separate tier III disciplinary hearing, petitioner was found guilty of makingthreats and creating a disturbance after he threatened to spit on and sexually assault a correctionofficer and ignored orders to stop yelling. That determination was also affirmed on administrativeappeal, after which petitioner commenced a second CPLR article 78 proceeding, which wasjoined with the first.[*2]
We confirm. With regard to both misbehavior reports, thereports themselves, along with the hearing testimony, supporting documentation and videotapesof the incidents, provide substantial evidence to support the determinations of guilt (see Matter of Abreu v Fischer, 83AD3d 1348, 1348 [2011]; Matter ofCallender v Selsky, 41 AD3d 1065, 1065-1066 [2007]). Petitioner's denial that the firstincident occurred and his assertion that the misbehavior reports were in retaliation for grievanceshe had filed raised credibility issues for the hearing officer to resolve (see Matter of Cody v Fischer, 84 AD3d1651, 1651 [2011]; Matter ofVaello v Connolly, 84 AD3d 1624, 1625 [2011]).
Turning to petitioner's procedural contentions, his claim that he was denied the right to call awitness and introduce documentary evidence in the first hearing is unpreserved for our reviewdue to his failure to make such requests, or raise any objections, during the hearing (see Matter of Barclay v Knowles, 79AD3d 1550, 1551 [2010]; Matter ofTerrence v Fischer, 64 AD3d 1110, 1111 [2009]). Finally, we find the determinations ofguilt flowed from the evidence presented, rather than any alleged hearing officer bias (see Matter of Weems v Fischer, 82AD3d 1454, 1456 [2011]).
We have examined petitioner's remaining contentions and have found them to be eitherunpreserved or without merit.
Mercure, J.P., Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petitions dismissed.