| Matter of Hogan v Fischer |
| 2011 NY Slip Op 09436 [90 AD3d 1544] |
| December 23, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of John Hogan, Appellant, v Brian Fischer,Commissioner, New York State Department of Correctional Services,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent-respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.),entered June 25, 2010 in a proceeding pursuant to CPLR article 78. The judgment denied thepetition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul thedetermination, following a Tier III hearing, that he violated inmate rules 106.10 (7 NYCRR270.2 [B] [7] [i] [refusal to obey orders]) and 109.12 (7 NYCRR 270.2 [B] [10] [iii] [failure tofollow directions relating to movement within the facility]). Petitioner contends that he had avalid excuse for refusing to obey an order to move to a new cell and thus that his violation ofthose rules was justified. We reject that contention. "[A]lthough petitioner claims that he did notleave [his] cell because he feared for his safety, inmates are not free to choose which orders toobey and which to ignore" (Matter of Farid v Coombe, 236 AD2d 660 [1997]). " 'Anyholding to the contrary would simply encourage inmates to break rules as a means of addressingtheir grievances and invite chaos' " (Matter of Rivera v Smith, 63 NY2d 501, 515-516[1984]).
Contrary to petitioner's further contention, his "conditional right to call witnesses was notviolated because the witnesses who were not called would have provided redundant testimony"(Matter of Robinson v Herbert, 269 AD2d 807 [2000]). In addition, petitioner'scontention that the Hearing Officer improperly denied his request for documentary evidence iswithout merit because "the documentary evidence sought by petitioner . . . was notin dispute" (Matter of Davis vGoord, 46 AD3d 955, 956 [2007], lv dismissed 10 NY3d 821 [2008]), and did"not include any information exonerating petitioner of his guilt" (Matter of Seymour v Goord, 24 AD3d831, 832 [2005], lv denied 6 NY3d 711 [2006]).
Also contrary to petitioner's contention, "[t]he Hearing Officer obtained valid extensions andthe hearing was completed within the extended time period" (Matter of Edwards vFischer, [*2]87 AD3d 1328, 1329 [2011]). Petitioner'scontention that Supreme Court should have granted his motion for recusal because the court wasbiased against him similarly lacks merit. " 'Absent a legal disqualification under Judiciary Law§ 14, a Trial Judge is the sole arbiter of recusal . . . [and a] court's decision inthis respect may not be overturned unless it was an abuse of discretion' " (People v Williams, 66 AD3d1440, 1441 [2009], lv dismissed 13 NY3d 911 [2009], quoting People vMoreno, 70 NY2d 403, 405-406 [1987]). We perceive no abuse of discretion here.
We have reviewed petitioner's remaining contentions and conclude that they are withoutmerit. Present—Smith, J.P., Peradotto, Lindley, Green and Martoche, JJ.