Opinion
2015-03-27
In the Matter of Michael SHAW, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered October 9, 2013 pursuant to a CPLR article 78 proceeding. The judgment confirmed the determination of respondent and dismissed the petition. Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski Of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent–Respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered October 9, 2013 pursuant to a CPLR article 78 proceeding. The judgment confirmed the determination of respondent and dismissed the petition.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski Of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent–Respondent.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rule 102.10 (7 NYCRR 270.2[B][3][i] [threats] ) and rule 104.11 (7 NYCRR 270.2[B][5][ii] [threats of violent conduct] ). The record on appeal does not support petitioner's contention that he was deprived of his right to attend the hearing. To the contrary, the escort officer testified at the hearing that petitioner had refused to attend, despite having been advised that the hearing would proceed in his absence ( see Matter of Rouse v. Fischer, 94 A.D.3d 1310, 1310, 942 N.Y.S.2d 384; Matter of Abreu v. Bezio, 84 A.D.3d 1596, 1596–1597, 922 N.Y.S.2d 667, lv. dismissed17 N.Y.3d 781, 929 N.Y.S.2d 81, 952 N.E.2d 1076, appeal dismissed 17 N.Y.3d 915, 934 N.Y.S.2d 368, 958 N.E.2d 546). We further conclude that, based upon his refusal to attend the hearing, petitioner has failed to preserve any procedural challenges to the manner in which those hearings were conducted ( see Matter of McFadden v. Dubray, 61 A.D.3d 1170, 1171, 878 N.Y.S.2d 468; Matter of Cooper v. Selsky, 43 A.D.3d 1254, 1255, 842 N.Y.S.2d 111, lv. dismissed 9 N.Y.3d 1026, 852 N.Y.S.2d 10, 881 N.E.2d 1196).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.