| Matter of Williams v Bezio |
| 2010 NY Slip Op 09602 [79 AD3d 1556] |
| December 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Darren Williams, Appellant, v Norman Bezio, as Directorof Special Housing and Inmate Disciplinary Programs, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered February 8, 2010 in AlbanyCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of the Commissioner of Correctional Services finding petitioner guilty of violatingcertain prison disciplinary rules.
While in the prison hospital, petitioner began banging on the door and yelling. He then had a verbalexchange with a correction officer who gave him several direct orders to stop yelling, which he allegedlyrefused. Petitioner was eventually removed from the hospital room and, when it was searched, an openjelly packet was discovered containing three pills that were not prescribed to petitioner. As a result,petitioner was charged in a misbehavior report with creating a disturbance, refusing a direct order,harassment, possessing unauthorized medication and possessing drugs. Following a tier III disciplinaryhearing, he was found guilty of all of the charges except for the one alleging that he possessed drugs.After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article78 proceeding. Supreme Court dismissed the petition, resulting in this appeal.
Petitioner's sole contention is that he was improperly excluded from the disciplinary hearing. Therecord discloses that petitioner was present during most of the hearing, but refused to leave his cell toattend the dispositional phase or sign a refusal form. The correction officer [*2]who attempted to escort petitioner from his cell to the hearing testifiedregarding petitioner's conduct and stated that both he and another officer witnessed petitioner refuse tosign the form, which they both signed. Under these circumstances, we find no error in the HearingOfficer's decision to proceed with the dispositional phase of the hearing in petitioner's absence (see Matter of Griffith v Selsky, 53 AD3d884 [2008]; Matter of Tafari vSelsky, 37 AD3d 887, 887-888 [2007], lv denied 8 NY3d 811 [2007]; Matterof Shannon v Goord, 284 AD2d 680 [2001]). Consequently, Supreme Court properly dismissedthe petition.
Cardona, P.J., Mercure, Rose, Lahtinen and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.