Opinion
2011-12-23
In the Matter of John HOGAN, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Correctional Services, Respondent–Respondent.
John Hogan, Petitioner–Appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent–Respondent.
John Hogan, Petitioner–Appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a Tier III hearing, that he violated inmate rules 106.10 (7 NYCRR 270.2[B][7][i] [refusal to obey orders] ) and 109.12 (7 NYCRR 270.2[B][10][iii] [failure to follow directions relating to movement within the facility] ). Petitioner contends that he had a valid excuse for refusing to obey an order to move to a new cell and thus that his violation of those rules was justified. We reject that contention. “[A]lthough petitioner claims that he did not leave [his] cell because he feared for his safety, inmates are not free to choose which orders to obey and which to ignore” ( Matter of Farid v. Coombe, 236 A.D.2d 660, 653 N.Y.S.2d 715). “ ‘Any holding to the contrary would simply encourage inmates to break rules as a means of addressing their grievances and invite chaos' ” ( Matter of Rivera v. Smith, 63 N.Y.2d 501, 515–516, 483 N.Y.S.2d 187, 472 N.E.2d 1015).
Contrary to petitioner's further contention, his “conditional right to call witnesses was not violated because the witnesses who were not called would have provided redundant testimony” ( Matter of Robinson v. Herbert, 269 A.D.2d 807, 703 N.Y.S.2d 423). In addition, petitioner's contention that the Hearing Officer improperly denied his request for documentary evidence is without merit because “the documentary evidence sought by petitioner ... was not in dispute” ( Matter of Davis v. Goord, 46 A.D.3d 955, 956, 846 N.Y.S.2d 770, lv. dismissed 10 N.Y.3d 821, 858 N.Y.S.2d 647, 888 N.E.2d 388), and did “not include any information exonerating petitioner of his guilt” ( Matter of Seymour v. Goord, 24 A.D.3d 831, 832, 804 N.Y.S.2d 498, lv. denied 6 N.Y.3d 711, 814 N.Y.S.2d 600, 847 N.E.2d 1173).
Also contrary to petitioner's contention, “[t]he Hearing Officer obtained valid extensions and the hearing was completed within the extended time period” ( Matter of Edwards v. Fischer, 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358). Petitioner's contention that Supreme Court should have granted his motion for recusal because the court was biased against him similarly lacks merit. “ ‘Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal ... [and a] court's decision in this respect may not be overturned unless it was an abuse of discretion’ ” ( People v. Williams, 66 A.D.3d 1440, 1441, 886 N.Y.S.2d 534, lv. dismissed 13 N.Y.3d 911, 895 N.Y.S.2d 326, 922 N.E.2d 915, quoting People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200). We perceive no abuse of discretion here.
We have reviewed petitioner's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.