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Matter of Webb v. McGinnis

Appellate Division of the Supreme Court of New York, Third Department
Apr 13, 2000
271 A.D.2d 767 (N.Y. App. Div. 2000)

Opinion

April 13, 2000.

Appeal from a judgment of the Supreme Court (Castellino, J.), entered May 4, 1999 in Chemung 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 a prison disciplinary rule.

Michael Webb, Pine City, appellant in person.

Eliot Spitzer, Attorney-General (Peter G. Crary of counsel), Albany, for respondent.

Before: MERCURE, J.P., PETERS, SPAIN, GRAFFEO and MUGGLIN, JJ.


MEMORANDUM AND ORDER

Following a tier II disciplinary hearing, petitioner, a prison inmate, was found guilty of refusing a direct order after a correction officer ordered petitioner to turn his cell light on and he refused to comply. Petitioner's administrative appeal was unsuccessful and he thereafter commenced this CPLR article 78 proceeding raising various procedural claims. Supreme Court subsequently dismissed the petition and we affirm.

Initially we reject petitioner's contention that the Hearing Officer removed him from the hearing. A review of the record indicates that petitioner voluntarily left the hearing and, therefore, waived his right to be present at the hearing (see,Matter of Jihad v. Mann, 159 A.D.2d 914, lv denied 76 N.Y.2d 706). Contrary to petitioner's argument, he was not entitled to an assistant to aid in his defense under the circumstances pertaining to his tier II hearing (see generally, 7 NYCRR 251-4.1) and he has failed to demonstrate that this policy is unconstitutional (see,Matter of Rivera v. Senkowski, 264 A.D.2d 873). Equally unpersuasive is petitioner's claim that the Hearing Officer who presided over petitioner's tier II hearing was not impartial. Our independent review of the hearing transcript fails to reveal any indication of bias (see, Matter of Mafuz v. Goord, 260 A.D.2d 806).

Petitioner's remaining arguments, including his contention that he was denied relevant documentary evidence and the right to call witnesses, have been examined and found to be without merit.

ORDERED that the judgment is affirmed, without costs.


Summaries of

Matter of Webb v. McGinnis

Appellate Division of the Supreme Court of New York, Third Department
Apr 13, 2000
271 A.D.2d 767 (N.Y. App. Div. 2000)
Case details for

Matter of Webb v. McGinnis

Case Details

Full title:In the Matter of MICHAEL WEBB, Appellant, v. MICHAEL McGINNIS, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Apr 13, 2000

Citations

271 A.D.2d 767 (N.Y. App. Div. 2000)
706 N.Y.S.2d 644

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