| Matter of Weems v Fischer |
| 2010 NY Slip Op 05825 [75 AD3d 681] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kevin Weems, Petitioner, v Brian Fischer,as Commissioner of Correctional Services, 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 three determinations which found petitioner guilty ofviolating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding challenging one tier II prisondisciplinary determination and two tier III prison disciplinary determinations. The tier IIdetermination found him guilty of an unauthorized exchange. The first tier III determination,rendered in March 2008, found him guilty of refusing a direct order, making threats, interferenceand a movement regulation violation. The second tier III determination, rendered in April 2008,found him guilty of refusing a direct order and possession of a weapon.
Initially, the Attorney General has advised this Court that the tier II determination has beenadministratively reversed and all references thereto expunged from petitioner's institutionalrecord. Petitioner thus has received all the relief to which he is entitled with regard to thatdetermination, and that part of his petition addressing it is dismissed as moot (see Matter of Hernandez v Smith, 52AD3d 1134, 1134 [2008]).
With regard to the March 2008 tier III determination, we initially note that a correctionofficer who attempted to escort petitioner to the final portion of the disciplinary hearing testified[*2]that petitioner refused to leave his cell or sign thecorresponding refusal form. While there is no proof that petitioner was advised that the hearingwould nevertheless continue in his absence, his willful refusal to return to a proceeding that wasnearing completion constituted an unambiguous forfeiture of the right to be present (seePeople v Sanchez, 65 NY2d 436, 443-444 [1985]; Matter of Dexter v Goord, 257AD2d 936 [1999]; Matter of Cowart v Pico, 213 AD2d 853, 855 [1995], lvdenied 85 NY2d 812 [1995]; compare Matter of Tafari v Selsky, 40 AD3d 1172, 1173 [2007];Matter of Rush v Goord, 2 AD3d1185, 1186 [2003]). On the merits, the misbehavior report and hearing testimony indicatethat, while a correction officer escorted petitioner to a new cell, petitioner became verballyabusive, ignored orders to keep moving, and eventually stopped and stated in a menacing mannerthat "you better get a sergeant down here now or I ain't moving." As such, substantial evidencesupports the determination of guilt as to each violation (see Matter of Barham v Goord, 42 AD3d 607, 608 [2007];Matter of Johnson v Coughlin, 157 AD2d 991, 992 [1990]).
Substantial evidence also supports the April 2008 direct order and weapon violationsdetermination, as the misbehavior report and hearing testimony reveal that petitioner refusedorders to hand over an envelope he was holding that was found to contain a makeshift weapon(see Matter of Nimmons v Fischer,68 AD3d 1311 [2009]). Petitioner's remaining claims have been considered and found to bewithout merit.
Mercure, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Adjudged that the portion of thepetition challenging the tier II determination is dismissed, as moot, without costs. Adjudged thatthe March 2008 and April 2008 tier III determinations are confirmed, without costs, and petitiondismissed to that extent.