                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   518698
________________________________

In the Matter of MITCHELL
   KALWASINSKI,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Peters, P.J., Stein, McCarthy, Garry and Lynch, JJ.

                             __________


     Mitchell Kalwasinski, Alden, 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 the Commissioner of Corrections and
Community Supervision which found petitioner guilty of violating
certain prison disciplinary rules.

      Petitioner, an inmate, was involved in an incident on July
12, 2013 in which he yelled at a facility nurse, made graphic
threats, remarks and gestures to her and a correction officer
while nude in his cell, and kicked the cell door, conduct which
continued after he was ordered to stop. Petitioner was charged
in a misbehavior report with lewd conduct, making threats,
creating a disturbance, refusing a direct order and harassment.
About 90 minutes later, when the correction officer passed
                              -2-                518698

petitioner's cell while making rounds, petitioner threatened to
spit in his face and then spat several times on the cell window.
As a result of that incident, petitioner was charged in a second
misbehavior report with making threats and committing an
unhygienic act. Following a tier III hearing that petitioner
refused to attend or participate in, he was found guilty of all
charges and a penalty, including six months in the special
housing unit, was imposed. After an unsuccessful administrative
appeal, petitioner commenced this CPLR article 78 proceeding.

      We confirm. The misbehavior reports, which contain
"factually specific account[s] of the incident[s]," including the
exact words uttered and gestures made by petitioner, were
authored by the correction officer who witnessed, and was an
object of, the misconduct (Matter of Amaker v Selsky, 43 AD3d
547, 547 [2007], lv denied 9 NY3d 814 [2007]; see Matter of
Hernandez v Goord, 37 AD3d 893, 894 [2007]). We find that they
were, standing alone, "sufficiently relevant and probative" to
constitute substantial evidence of the charged misconduct (Matter
of Perez v Wilmot, 67 NY2d 615, 616 [1986]; see Matter of Foster
v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Green v Bradt, 91
AD3d 1235, 1237 [2012], lv denied 19 NY3d 802 [2012]; Matter of
Encarnacion v Bellnier, 89 AD3d 1301, 1302 [2011]; Matter of
Gillard v White, 79 AD3d 1466, 1467 [2010] Matter of Saunders v
Goord, 49 AD3d 1000, 1000 [2008]). This is particularly so where
petitioner refused to attend, answer the Hearing Officer's
questions, present any evidence or request to question the
witnesses (see Matter of Soto v Central Off. Review Comm. of the
Dept. of Corrections & Community Supervision, 118 AD3d 1229, 1230
[2014]). Contrary to his contentions, the record reflects that
the escort officer informed the Hearing Officer at the start of
the hearing that petitioner had refused to attend; the Hearing
Officer then personally went to petitioner's cell and spoke with
him and advised him that the hearing would proceed and conclude
in his absence, and petitioner told him that he did not wish to
attend and refused to sign the refusal to attend form.
Petitioner's refusal was documented in the refusal to attend
form, signed by the Hearing Officer and another officer who
witnessed the refusal. By refusing to attend the hearing,
petitioner forfeited his right to be present and failed to
preserve any procedural objections or defenses (see Matter of
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Sowell v Fischer, 116 AD3d 1308, 1309 [2014], appeal dismissed 24
NY3d 933 [2014]; Matter of Abreu v Bezio, 84 AD3d 1596, 1596-1597
[2011], appeals dismissed 17 NY3d 781, 915 [2011]; Matter of
McFadden v Dubray, 61 AD3d 1170, 1171 [2009]). Petitioner's
remaining contentions, including his claim that issues related to
his mental health status (see 7 NYCRR 254.6 [b]) were
insufficiently explored, have been examined and found to be
without merit.

      Peters, P.J., Stein, McCarthy, Garry and Lynch, JJ.,
concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
