| Matter of Cooper v Selsky |
| 2007 NY Slip Op 07039 [43 AD3d 1254] |
| September 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Bernard Cooper, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in two misbehavior reports with violating the prison disciplinary rulesthat prohibit the possession of narcotics, the possession of excess tobacco products, refusing adirect order, smuggling, refusing a search or frisk and the possession of contraband. Following atier III disciplinary hearing, which petitioner did not attend, he was found guilty of all charges.The determination was affirmed upon administrative appeal, but the penalty imposed wasmodified. This CPLR article 78 proceeding ensued.
The detailed misbehavior reports and other documentary evidence, the positive drug testresults and the hearing testimony provide substantial evidence of petitioner's guilt (see Matter of Callender v Selsky, 41AD3d 1065, 1066 [2007]; Matter ofExcell v Goord, 35 AD3d 946, 946 [2006]). The hearing was properly held inpetitioner's absence inasmuch as the Hearing Officer's inquiry into petitioner's claimed incapacityrevealed no documented medical condition that prevented petitioner from appearing (seeMatter of Rossi v Portuondo, 277 AD2d 615, 616 [2000], lv denied 96 NY2d 706[2001]; Matter of Ward v Goord, 249 AD2d 711, 712 [1998]). [*2]In addition, the Hearing Officer personally interviewed petitioner inhis cell to inform him of the consequences of his failure to appear, which petitioneracknowledged that he understood (see Matter of Lebron v Goord, 288 AD2d 583, 584[2001], lv denied 97 NY2d 608 [2002]; Matter of Rossi v Portuondo, 277 AD2d615, 616 [2000], lv denied 96 NY2d 706 [2001]). Having refused to appear at thehearing, petitioner waived his right to challenge any alleged procedural irregularities (see Matter of Tafari v Selsky, 31 AD3d1087, 1088 [2006], lv denied 7 NY3d 717 [2006]; Matter of Cotton vCoughlin, 167 AD2d 584 [1990]), including his claim that he did not receive the drug testingforms prior to the hearing (see 7 NYCRR 1010.5).
To the extent that they were preserved, petitioner's remaining contentions, including hischallenge to the sufficiency of the statement of evidence relied upon, have been examined anddetermined to be without merit.
Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.