| Matter of Applewhite v Goord |
| 2008 NY Slip Op 02522 [49 AD3d 1046] |
| March 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Chris Applewhite, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Rumsey, J.), entered February 23, 2007 inChemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Commissioner of Correctional Servicesfinding petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with engaging in violent conduct andassaulting staff. A tier III disciplinary hearing ensued and, during the course thereof, petitionerwas expelled for disruptive behavior. The hearing proceeded in petitioner's absence and,ultimately, petitioner was found guilty of engaging in violent conduct, but not guilty of assaultingstaff. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article78 proceeding contending solely that he was improperly removed from the disciplinary hearing.Supreme Court disagreed and dismissed the petition, prompting this appeal.
We affirm. The record reveals that shortly after the disciplinary hearing commenced,petitioner accused the Hearing Officer of "conspir[ing] to deprive [him] of [his] rights" andthreatened to sue the Hearing Officer if the charges against him were sustained. The HearingOfficer responded that he would entertain appropriate objections, but would not tolerate suchthreats. Petitioner continued to lodge objections, accused the Hearing Officer of being biased[*2]and claimed that he received inadequate employee assistance,which the Hearing Officer duly noted and attempted to address. During this colloquy, petitionerrepeatedly called the Hearing Officer a liar, and the Hearing Officer, in turn, repeatedly warnedpetitioner that if he continued to make such comments, he would be removed. Petitionerpersisted and the Hearing Officer expelled petitioner from the hearing. Given petitioner'sdisruptive, argumentative and antagonistic behavior, we cannot say that the Hearing Officer erredin removing him from the remainder of the hearing (see Matter of Marie v Goord, 34 AD3d 1019 [2006]; Matter of Acevedo v Goord, 32 AD3d1143, 1144 [2006]; Matter ofRaqiyb v Goord, 24 AD3d 1013 [2005]). Accordingly, the petition was properlydismissed.
Mercure, J.P., Carpinello, Kane, Malone Jr. and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed, without costs.