| Matter of Raqiyb v Fischer |
| 2011 NY Slip Op 01912 [82 AD3d 1432] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Hasan Raqiyb, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Eric T. Schneiderman, 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 two determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was served with a misbehavior report charging him with refusinga direct order after he was directed to make a hospital trip and refused to go, and later refused toallow his restraints to be removed when the trip was canceled. Subsequently, he was charged in asecond misbehavior report with refusing a direct order, harassment, making threats, committingan unhygienic act, disturbing facility order and engaging in lewd conduct. Those charges stemfrom an incident during which, while confined to the prison hospital, he continually pressed theemergency call button for eight hours despite being given several orders to stop. Additionally,petitioner verbally harassed and threatened the nurse on duty, swung a medical bag, sprayingurine throughout the room, and masturbated in plain view of the nurse. After separate tier IIIdisciplinary hearings, petitioner was found guilty on all charges emanating from the two reports.On administrative appeal, both determinations were affirmed, with a reduction in the penaltyassessed with regard to the second report. Thereafter, petitioner commenced this CPLR [*2]article 78 proceeding to challenge both determinations.[FN*]
We confirm. Petitioner's primary contention is that his due process rights were violated whenthe first disciplinary hearing was completed and the second disciplinary hearing was conducted inhis absence after he declined to attend, claiming he did not feel well. However, the record reflectsthat the Hearing Officer, who conducted both hearings, interviewed the nurses who were on dutyat the time of petitioner's refusals. In both cases, the nurses testified that petitioner was refusingall treatment for his maladies and was ambulatory and physically capable of attending thehearings. In addition, an escort officer testified that when he sought to escort petitioner to boththe continuation of the first hearing and the second hearing, petitioner left his bed and walked tothe door to speak with the officer. Upon petitioner's refusals to attend, the officer informedpetitioner that the hearings may be held in his absence and petitioner understood and still refusedto attend. Under the circumstances, we find no basis upon which to disturb the Hearing Officer'sdetermination that petitioner waived his right to attend the respective hearings (see Matter of McFadden v Dubray, 61AD3d 1170, 1170-1171 [2009]; Matter of Davis v Goord, 20 AD3d 706, 707-708 [2005], lvdenied 5 NY3d 715 [2005]). Additionally, by virtue of his refusal to attend, we find thatpetitioner has waived any procedural challenges he may have had with regard to the manner inwhich the hearings were conducted (see Matter of McFadden v Dubray, 61 AD3d at1171; Matter of Cooper v Selsky, 43AD3d 1254, 1255 [2007], appeal dismissed 9 NY3d 1026 [2008]). Finally, ourreview of the record reveals no hearing officer bias but, rather, that the determinations of guiltwere based upon the evidence presented at the hearings (see Matter of Lamphear v Fischer, 76 AD3d 1166 [2010]; Matter of Hamilton v Bezio, 76 AD3d1125, 1126 [2010]). Petitioner's remaining claims are unpreserved or without merit.
Spain, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determinationsare confirmed, without costs, and petition dismissed.
Footnote *: Although petitioner raised aquestion of substantial evidence in his petition and, thus, this proceeding was properly transferredto this Court, he has abandoned such argument now by his failure to raise it in his brief (see Matter of Ifill v Fischer, 72 AD3d1367, 1368 n [2010]).