Opinion
09-15-2016
In the Matter of Wendell DANIELS, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Wendell Daniels, Elmira, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Wendell Daniels, Elmira, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Appeal from a judgment of the Supreme Court (DeBow, J.), entered September 14, 2015 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with conspiring to bring drugs into the facility, smuggling, making a prohibited three-way telephone call and noncompliance with facility visiting procedures. During the course of an ensuing tier III disciplinary hearing, a Hearing Officer adjourned those proceedings to, among other things, obtain documents requested by petitioner. When the hearing resumed, petitioner refused to leave his cell and attend the conclusion of the hearing; the hearing then continued in his absence resulting in a determination of guilt as to all charges. The determination was upheld on administrative appeal, and petitioner commenced this CPLR article 78 proceeding to challenge the determination. Supreme Court dismissed the petition, and petitioner now appeals.
We affirm. Contrary to petitioner's contentions, we find no record evidence that he was deprived of his right to attend the disciplinary hearing or that he did not “knowingly, voluntarily or intelligently waive his right to attend the [ ]hearing” (Matter of Sowell v. Fischer, 116 A.D.3d 1308, 1309, 983 N.Y.S.2d 912 [2014], appeal dismissed and lv. denied 24 N.Y.3d 933, 993 N.Y.S.2d 544, 17 N.E.3d 1141 [2014] ; see Matter of Kalwasinski v. Prack, 122 A.D.3d 990, 991, 994 N.Y.S.2d 481 [2014] ). When the hearing resumed, the escorting officer testified that he had attempted to escort petitioner to the hearing and that petitioner refused to leave his cell, despite being advised that the hearing would proceed in his absence (see Matter of Kalwasinski v. Prack, 122 A.D.3d at 991, 994 N.Y.S.2d 481 ; Matter of Abreu v. Bezio, 84 A.D.3d 1596, 1596, 922 N.Y.S.2d 667 [2011], appeals dismissed 17 N.Y.3d 781, 915, 929 N.Y.S.2d 81, 952 N.E.2d 1076 [2011] ). The escorting officer also executed an inmate exclusion form, which petitioner refused to sign, documenting petitioner's refusal to attend the hearing and informing him that the hearing would continue in his absence (see Matter of Douglas v. Bedard, 134 A.D.3d 1317, 1317, 21 N.Y.S.3d 488 [2015] ; Matter of Kalwasinski v. Prack, 122 A.D.3d at 991, 994 N.Y.S.2d 481 ). Based upon his failure to attend the disciplinary hearing, we further conclude that petitioner has failed to preserve any procedural challenges to the manner in which those hearings were conducted (see Matter of Douglas v. Bedard, 134 A.D.3d at 1318, 24 N.Y.S.3d 224 ; Matter of Abreu v. Bezio, 84 A.D.3d at 1596, 922 N.Y.S.2d 667 ). Petitioner's remaining arguments have been examined and found to be without merit.
ORDERED that the judgment is affirmed, without costs.
PETERS, P.J., McCARTHY, EGAN JR., ROSE and AARONS, JJ., concur.