Kalwasinski v. Senkowski

244 A.D.2d 738, 664 N.Y.S.2d 841, 1997 N.Y. App. Div. LEXIS 11763

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Substantial evidence supports the determination finding petitioner guilty of violating the prison disciplinary rule prohibiting harassment. Included in the evidence presented at petitioner’s disciplinary hearing was the misbehavior report authored by a registered nurse employed at a correctional facility where petitioner had previously been incarcerated. She testified that she had received a card, bearing the signature of another inmate, which contained explicit sexual language and a pornographic photograph. The card and photograph were admitted into evidence, as was the testimony of the nurse who stated that the language used in the letter was identical to that previously used by petitioner when speaking and writing to her. She also noted that the handwriting in the letter was the same as that used in petitioner’s previous letters to her. We find this sufficient to constitute substantial evidence of petitioner’s guilt (see, Matter of Richardson v Coombe, 231 AD2d 789, 790). Because of petitioner’s refusal to attend his disciplinary hearing, he waived the right to challenge the procedural irregularities alleged by him to have occurred at that hearing (see, Matter of Cowart v Pico, 213 AD2d 853, 855).

Cardona, P. J., Mercure, Crew III, Casey and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.