| Matter of McFadden v Dubray |
| 2009 NY Slip Op 02714 [61 AD3d 1170] |
| April 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Reginald McFadden, Petitioner, v Keith F. Dubray,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with violating various prison disciplinaryrules, including possession of a weapon. Following separate tier III disciplinary hearings, whichwere conducted in petitioner's absence, petitioner was found guilty of all but one charge andpenalties were imposed. Petitioner's respective administrative appeals were unsuccessful,prompting him to commence this CPLR article 78 proceeding to annul the determinations ofguilt.[FN*][*2]
Petitioner's primary contention on review is that thedisciplinary hearings improperly were conducted in absentia after he refused to attend them,claiming that he was bedridden due to a disabling ankle injury. We cannot agree. The recordreflects that the Hearing Officer, who conducted both tier III hearings, personally interviewedpetitioner in the infirmary, attempted to persuade petitioner to attend the hearings, advised thathe would conduct the hearings in petitioner's absence if petitioner refused and attempted toascertain whether petitioner wished to call witnesses or introduce documentary evidence. TheHearing Officer also consulted the facility nurse, who testified that petitioner was able to standand be weighed and, hence, should be able to utilize the available wheelchair for transport to thenearby hearing room. When petitioner claimed to be dizzy, the Hearing Officer, in addition toquestioning the nurse and making his own observations as to petitioner's ability to comprehendand respond to questions, adjourned the hearings to receive confidential testimony as topetitioner's mental health status. Under such circumstances, we discern no basis upon which todisturb the Hearing Officer's finding that petitioner waived his right to attend the respectivehearings (see Matter of Davis vGoord, 20 AD3d 706, 707-708 [2005], lv denied 5 NY3d 715 [2005];Matter of Lebron v Goord, 288 AD2d 583, 584 [2001], lv denied 97 NY2d 608[2002]). Further, having declined to attend the hearings, petitioner waived his right to challengeany alleged procedural irregularities that may have existed (see Matter of Cooper v Selsky, 43 AD3d 1254, 1255 [2007], lvdismissed 9 NY3d 1026 [2008]; Matter of Abdur-Raheem v Burge, 39 AD3d 927 [2007]).
Peters, J.P., Spain, Kane, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedeterminations are confirmed, without costs, and petition dismissed.
Footnote *: As the petition did not raise aquestion of substantial evidence, the proceeding should not have been transferred to this Court;we nevertheless retain jurisdiction in the interest of judicial economy (see Matter of Williams v Goord, 37AD3d 948 [2007], lv denied 8 NY3d 1021 [2007]).