Opinion
1224 TP 17-00672.
11-09-2017
In the Matter of Leroy JOHNSON, Petitioner, v. Stewart ECKERT, Superintendent, Wende Correctional Facility, Respondent.
Leroy Johnson, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
Leroy Johnson, Petitioner Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier II hearing, that he violated inmate rules 106.10 ( 7 NYCRR 270.2 [B][7][i] [refusal to obey order] ) and 109.12 ( 7 NYCRR 270.2 [B][10][iii] [movement regulation violation] ). Contrary to petitioner's contention, inasmuch as the issue raised in the petition is one of substantial evidence, Supreme Court properly transferred the proceeding to this Court pursuant to CPLR 7804(g) (see matter of mcmillian v. lempke, 149 a.d.3d 1492, 1492–1493, 52 N.Y.S.3d 771 [4th Dept.2017], appeal dismissed 30 N.Y.3d 930, 62 N.Y.S.3d 292, 84 N.E.3d 964 [2017] ; Matter of Tafari v. Selsky, 76 A.D.3d 1144, 1145, 907 N.Y.S.2d 886 n [3d Dept.2010], appeal dismissed 16 N.Y.3d 783, 919 N.Y.S.2d 507, 944 N.E.2d 1146 [2011] ). Contrary to petitioner's further contention, the detailed misbehavior report and the testimony at the hearing, including petitioner's own admissions, constitute substantial evidence supporting the determination (see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ). Although an inmate patient has the right to refuse treatment to the extent permitted by law and cannot be penalized exclusively upon assertion of that right (see 9 NYCRR 7651.26 [a] [6]; [b] ), the evidence here established that petitioner received punishment for violating inmate rules after he refused to attend a mandatory medical callout where he could have invoked his right to refuse treatment (see Matter of Siao– Pao v. O'Keefe, 244 A.D.2d 741, 741, 664 N.Y.S.2d 842 [3d Dept.1997] ). In any event, even if the order to attend the medical callout was improper, petitioner was " ‘not free to choose which orders to obey and which to ignore’ " (Matter of Hogan v. Fischer, 90 A.D.3d 1544, 1545, 935 N.Y.S.2d 769 [4th Dept.2011], lv. denied 19 N.Y.3d 801, 957 N.Y.S.2d 285, 980 N.E.2d 950 [2012] ; see Matter of Rivera v. Smith, 63 N.Y.2d 501, 515–516, 483 N.Y.S.2d 187, 472 N.E.2d 1015 [1984] ; Matter of Parrilla v. Senkowski, 300 A.D.2d 870, 871, 754 N.Y.S.2d 684 [3d Dept.2002], lv. denied 99 N.Y.2d 510, 760 N.Y.S.2d 102, 790 N.E.2d 276 [2003] ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.