| Matter of Ifill v Fischer |
| 2010 NY Slip Op 09047 [79 AD3d 1322] |
| December 9, 2010 |
| Appellate Division, Third Department |
| In the Matter of Richard Sunday Ifill, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review five determinations which found petitioner guiltyof violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding challenging one tier II and four tier IIIprison disciplinary determinations. Initially, we note that the Attorney General has advised this Courtthat the September 3, 2008 disciplinary determination has been administratively reversed and expungedfrom petitioner's institutional record. Accordingly, petitioner has received all the relief to which he isentitled and that part of the petition is dismissed as moot (see Matter of Weems v Fischer, 75 AD3d 681, 682 [2010]).Additionally, inasmuch as there is no proof in the record that petitioner exhausted his administrativeremedies by filing an administrative appeal from the August 5, 2008 determination, his challenge to thatdetermination is precluded (see Matter of Hendricks v Franklin Correctional Facility, 249AD2d 856 [1998]).
With respect to the August 1, 2008 determination, petitioner was charged in a misbehavior reportwith soliciting, possessing contraband, unauthorized selling, false [*2]information, unauthorized documentation and violating facilitycorrespondence rules. The charges stemmed from an authorized mail watch which revealed thatpetitioner used unauthorized letterhead misrepresenting himself as the executive director of an inmateorganization wherein he requested that the recipient send him candy that he intended to sell in thefacility. Following the tier III disciplinary hearing, petitioner was found guilty of all charges.
We agree with petitioner that he was denied the right to be present during the disciplinary hearing.The record establishes that during the hearing when petitioner received the mail watch approval formand requested time to prepare a defense, the hearing was adjourned. Upon the continuation of thehearing, the Hearing Officer noted that petitioner had refused to attend and proceeded withoutpetitioner present. This record does not contain an adequate basis to conclude that petitioner refused toattend the hearing or was informed of the consequences of his failure to appear (see 7 NYCRR254.6 [a] [2]; Matter of Tafari v Selsky,40 AD3d 1172, 1173 [2007]). In the absence of a knowing and voluntary waiver by petitioner ofhis right to attend the hearing, the August 1, 2008 determination must be annulled.
Next, the August 8, 2008 determination found petitioner guilty of impersonation, unauthorizedexchange, possession of another inmate's crime information, providing unauthorized legal assistance andforgery. The misbehavior report, testimony from its author and the documents found in petitioner's cellprovide substantial evidence supporting the determination of guilt (see Matter of McNamara vGoord, 290 AD2d 909 [2002]). Petitioner's procedural claims, including that he was denied theright to call certain witnesses and that the Hearing Officer was biased, have been reviewed and found tobe without merit.
Finally, substantial evidence also supports the August 22, 2008 determination finding petitionerguilty, following a disciplinary hearing, of an unauthorized exchange, making false statements andmaking threats (see Matter of Figueroa v Goord, 296 AD2d 739, 740 [2002], lvdenied 99 NY2d 502 [2002]). Specifically, the correction officer who authored the misbehaviorreport testified that petitioner improperly handed the laundry porter his mail to place in the mail slot.When the correction officer returned the mail, petitioner accused the correction officer of stealing hismail, became verbally abusive and threatened him. As to petitioner's contention that he wasimpermissibly removed from the final phase of the hearing, a review of the transcript reveals thatpetitioner had become unruly and disruptive (see Matter of Fontaine v Superintendent of Southport Correctional Facility,35 AD3d 1113, 1114 [2006], lv dismissed 8 NY3d 943 [2007]). We have reviewedpetitioner's remaining contentions and find them to be unpersuasive.
Peters, Spain, Kavanagh and Egan Jr., JJ., concur. Adjudged that the determination dated August1, 2008 is annulled, without costs, amended petition granted to that extent and respondent is directed toexpunge all references thereto from petitioner's institutional record. Adjudged that the determinationsdated August 8, 2008 and August 22, 2008 are confirmed, without costs, and amended petitiondismissed to that extent. Adjudged that that the portions of the amended petition challenging thedeterminations dated August 5, 2008 and September 3, 2008 are dismissed, without costs.