Webb v. McGinnis

Apr 13, 2000
Versions:271 A.D.2d 767
706 N.Y.S.2d 644
2000 N.Y. App. Div. LEXIS 4226

—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.

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.

*768Initially 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 AD2d 914, lv denied 76 NY2d 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 AD2d 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 AD2d 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.

Mercure, J. P., Peters, Spain, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.