IN RE: Andre WAUL (1999)

Proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of the Department of Correctional Services of the State of New York, dated December 24, 1996, which affirmed the decision of a Hearing Officer, made after an administrative hearing, finding the petitioner guilty of obstructing visibility in his State correctional facility cell and imposing a penalty.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

 The record contains substantial evidence to support the determination of the Commissioner of the Department of Correctional Services of the State of New York that the petitioner, an inmate at the Auburn State correctional facility, violated an institutional rule (see, CPLR 7803[4];  Matter of Boyd v. Constantine, 81 N.Y.2d 189, 196, 597 N.Y.S.2d 605, 613 N.E.2d 511;  Matter of Koh v. Perales, 173 A.D.2d 477, 478, 570 N.Y.S.2d 98).   Additionally, the penalty imposed was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 230, 356 N.Y.S.2d 833, 313 N.E.2d 321).

The petitioner's remaining contentions are unpreserved for appellate review (see, Horton v. Smith, 51 N.Y.2d 798, 433 N.Y.S.2d 92, 412 N.E.2d 1318;  Matter of Anthony Baker v. Chief of the New York City Tr. Police Dept., 232 A.D.2d 632, 648 N.Y.S.2d 1001), and, in any event, do not provide a basis for granting the petition.

MEMORANDUM BY THE COURT.