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In the Matter of Mitchell J. Kalwasinski v. Norman R. Bezio

State of New York Supreme Court, Appellate Division Third Judicial Department


April 21, 2011

IN THE MATTER OF MITCHELL J. KALWASINSKI, APPELLANT,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered June 2, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review (1) a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule and (2) a determination of the Central Office Review Committee denying his grievance.

MEMORANDUM AND ORDER

Calendar Date: February 28, 2011

Before: Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ.

The Washington County District Attorney's office received a letter, purportedly from petitioner, a prison inmate, which stated that he was intending to commit crimes against the staff at Great Meadow Correctional Facility in Washington County. Following an investigation, petitioner was charged in a misbehavior report with making threats. He was found guilty following a tier III disciplinary hearing and that determination was affirmed on administrative appeal. In addition, petitioner filed a grievance alleging that force was used against him at the disciplinary hearing when a correction officer ripped documents out of his hands. Ultimately, the Central Office Review Committee denied the grievance, after which petitioner commenced this CPLR article 78 proceeding to challenge both the disciplinary determination and the denial of his grievance. Supreme Court dismissed the petition and petitioner now appeals.

We affirm. Initially we note that petitioner, in his brief to this Court, abandoned his challenge to the denial of his grievance. With respect to the disciplinary determination, petitioner failed to raise the issue of substantial evidence in his petition and, therefore, the issue is not properly before this Court (see Matter of Rivera v Fischer, 72 AD3d 1300, 1301 [2010], lv denied 15 NY3d 703 [2010]; Matter of Cole v Goord, 47 AD3d 1148, 1148 [2008]). Finally, our review of the record leads us to conclude that Supreme Court correctly decided each of petitioner's procedural claims.

Peters, J.P., Lahtinen, Kavanagh, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110421

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