| Matter of Kimble v Fischer |
| 2008 NY Slip Op 08394 [56 AD3d 879] |
| November 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Joseph Kimble, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 respondent which found petitionerguilty of violating certain prison disciplinary rules.
During a frisk search, a correction officer observed what appeared to be a balloon inpetitioner's mouth and ordered him to spit it out. Petitioner refused, seemingly swallowing theobject, and punched the officer in the chest. As a result, petitioner was charged in a misbehaviorreport with smuggling, disobeying a direct order, violating frisk procedures, engaging in violentconduct and assaulting an employee. Following a tier III disciplinary hearing, petitioner wasfound guilty of all charges. That determination was affirmed upon administrative appeal and thisCPLR article 78 proceeding seeking annulment ensued.
We confirm. Substantial evidence including the misbehavior report and relateddocumentation supports the determination of guilt (see Matter of Tayler v Selsky, 49 AD3d 1060, 1060 [2008]).Regarding petitioner's remaining procedural contentions, he has waived his right to pursue theseclaims inasmuch as the record establishes that he voluntarily refused to attend the hearing (see Matter of Tafari v Selsky, 37 AD3d887, 888 [2007]).
Cardona, P.J., Mercure, Peters, Lahtinen and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.