State of New York Supreme Court, Appellate Division Third Judicial Department
January 20, 2011
IN THE MATTER OF MITCHELL J. KALWASINSKI, PETITIONER,
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.
Decided and Entered: January 20, 2011
MEMORANDUM AND JUDGMENT
Calendar Date: November 29, 2010
Before: Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ.
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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
While being escorted to a disciplinary hearing, petitioner tried to kick another inmate who was seated on a bench nearby. As a result, he was charged in a misbehavior report with the attempted assault of an inmate. He was found guilty of the charge following a tier III disciplinary hearing. The determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officer who prepared it as well as that of the other correction officers present at the scene, provide substantial evidence supporting the determination of guilt (see Matter of Brown v Selsky, 49 AD3d 1108 ; Matter of Peoples v Selsky, 33 AD3d 1179, 1180 ; Matter of Howard v Goord, 9 AD3d 778, 778 , appeal dismissed 3 NY3d 764 ). Petitioner's testimony that he did not try to kick the inmate, but rather tripped on a carpet, presented a credibility issue for the Hearing Officer to resolve (see Matter of Martinez v Selsky, 53 AD3d 989, 989 ; Matter of Williams v Selsky, 50 AD3d 1426, 1427 , lv denied 11 NY3d 703 ). Furthermore, we find no merit to petitioner's claim that he was denied a fair hearing inasmuch as there is no indication in the record that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Rivera v Goord, 38 AD3d 964, 964 ; Matter of Porter v Goord, 7 AD3d 847, 848 ). Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.
Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Robert D. Mayberger Clerk of the Court
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