Matter of Marie v Goord
2005 NY Slip Op 52365(U) [19 Misc 3d 1131(A)]
Decided on August 31, 2005
Supreme Court, Franklin County
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be
published in the printed Official Reports.
Matter of Marie v Goord
Decided on August 31, 2005
Supreme Court, Franklin County
In the Matter of the Application of Reginald Jean Marie, Petitioner, For a Judgment Pursuant to Article 78 Of the Civil Practice Laws and Rules
Glenn S. Goord, Commissioner, NYS Department of Correctional Services, Respondent.
The petitioner is represented, in this proceeding, by Stacy L. Graczyk, Esq., Prisoners' Legal Services of New York.
S. Peter Feldstein, J.
This is a proceeding pursuant to Article 78 of the CPLR that was originated by the Notice of Petition and Petition of Reginald Jean Marie, verified on June 8, 2005, and stamped as filed in the Franklin County Clerk's office on June 9, 2005. Petitioner, who is an inmate at the Upstate Correctional Facility, is challenging the results of a Tier III Superintendent's Hearing held at the Bare Hill Correctional Facility on November 30, 2004. The Court has received and reviewed respondent's Answer and Return, verified on July 6, 2005, as well as respondent's Letter Memorandum of July 6, 2005. The Court has also received and reviewed petitioner's Reply thereto, dated July 15, 2005.
As the result of incidents that occurred at the Bare Hill Correctional Facility on November 27, 2004, the petitioner was issued two inmate misbehavior reports charging him with violations of inmate rules 100.13 (fighting), 104.11 (violent conduct), 104.13 (disturbing the order of the facility), 100.11 (assault on staff), 115.10 (frisk procedures), 106.10 (direct order) and 104.11 (violent conduct). The specifics of the underlying incidents are not relevant to this proceeding. A single Tier III Superintendent's Hearing with respect to the charges set forth in both inmate misbehavior reports was held at the Bare Hill Correctional Facility on November 30, 2004. At the conclusion of the hearing the petitioner was found guilty of all charges and a disposition was imposed confining him to the special housing unit for 24 months directing the loss of various privileges for a like period of time and recommending the loss of 2 years good time. Upon administrative appeal and reconsideration the disposition of the Tier III Superintendent's Hearing was modified by reducing petitioner's SHU confinement, loss of privileges, and recommended loss of good time from 24 months to 12 months. This proceeding ensued.
According to the transcript of the hearing annexed to the respondent's answering papers as Exhibit C, at the very outset of the Tier III Superintendent's Hearing of November 30, 2004, the following colloquy occurred: [*2]
"Hearing officer:The time is 12:53 p.m., today's date is Tuesday, the 30th of November, the year 2004. My name is Capt. R. Foster, hearing officer, I have been designated to conduct this tier hearing by Supt. Donelli. This tier III hearing is being held in the hearing room in Bare Hill SHU. State your name and number,
Inmate:No, ...I'm not willing to have this.
Hearing officer:....for the record. Inmate:I have been in contact with you . . . and you already prejudice against me, I been in contact with you (inaudible)... you told me not to contact you again. After something very bad happened to me. Four hundred dollars in drugs....you guys, ha..(inaudible) you took upon yourself.....and wouldn't allow me...Hearing officer:Well, I'm the one that's been designated to hold you hearing . . .Inmate:You guys broke my hands, do you actually think that I'm going to be cool to someone who broke my hands, I want my lawyer. That's felony assault. Sir, you're talking to someone who doesn't have much respect for your authority right now....
Hearing officer:Well, what I'm trying to do.....
Inmate:(inaudible) (inmate screaming)....
Hearing officer:....remove him from here. I will hold this hearing in his absence.
Inmate:I don't care..you do that...you're a fuckin' piece of shit, you can kiss my ass.
Hearing officer:See you later.
Hearing officer:Now, let the record reflect in the Inmate JeanMarie due to his destructive [disruptive?] behavior, he has been removed from the hearing, [*3]and uh, this hearing will be held in his absence . . ."
On several occasions during the course of the Tier III Superintendent's Hearing conducted in petitioner's absence the hearing officer made reference to the exclusion of the petitioner based upon his disruptive behavior and verbal misconduct at the outset of the hearing. Toward the end of the Tier III Superintendent's Hearing the hearing officer stated the following: ". . . I just would like to reflect momentarily based upon what occurred at the start of the hearing. Inmate Jean-Marie, first of all stated that he was gonna have nothing of this . . . matter at the hearing therefore, waiving his . . . his right to appear at this hearing and . . . subsequently due to his own . . . continuing disruptive behavior and then which escalated into verbal misconduct, he was . . . dismissed from this hearing." The Court also notes that the hearing officer signed several DOCS 2176 forms stating that "Inmate Jean Marie waived his right to attend the hearing stating I am not going to have this.' Then removed for his disruptive behavior and verbal misconduct."
The sole issue before the Court is whether or not the Hearing Officer's determination to have the petitioner removed from the Tier III Superintendent's Hearing violated the petitioner's fundamental constitutional due process and/or regulatory rights. 7 NYCRR §254.6(a)(2) provides, in relevant part, that "[t]he inmate shall be present at the [Tier III] hearing unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals." "Unless an inmate knowingly, voluntarily and intelligently relinquishes his right to attend the [Tier III] hearing . . . or his presence would jeopardize institutional safety or correctional goals, he must be present . . ." Sanders v. Coughlin, 168 AD2d 719, 721, lv den 77 NY2d 806 (citations omitted) (emphasis added). Thus, an inmate may be properly excluded from a Tier III Superintendent's Hearing if either the inmate knowingly, voluntarily and intelligently waives his or her right to attend or if his or her presence at the hearing would jeopardize institutional safety or correctional goals. In order for an inmate to knowingly, voluntarily and intelligently waive his or her fundamental right to attend a Tier III Superintendent's Hearing, the inmate must be advised of that right and be warned that the hearing will proceed in his or her absence if the refusal to attend persists. See Rush v. Goord, 2 AD3d 1185 and Spirles v. Wilcox, 302 AD2d 826, lv den 100 NY2d 503. Where an inmate's exclusion from a Tier III Superintendent's Hearing is not based upon his or her waiver of the fundamental right to be present but, rather, upon a finding that such exclusion is necessitated by reasons of institutional safety or correctional goals, no such warnings are required. In order to justify such exclusion, however, the record must demonstrate that the hearing officer determined that the inmate's exclusion was actually necessary to promote institutional safety and correctional goals and there must be factual support in the record for that determination. See Boodro v. Coughlin, 142 AD2d 820.
In the case at bar it is clear that no waiver warnings were given to the petitioner prior to his exclusion from the remainder of the Tier III Superintendent's Hearing. His removal, therefore, can only be sustained if the above-stated requisites supporting an exclusion for reasons of institutional safety or correctional goals can be demonstrated. According to the petitioner, "[t]here is no evidence in the record to indicate that removal from the hearing without a warning was necessary for institutional safety or correctional goals." To this end the petitioner disputes the accuracy of the previously-quoted portion of the Exhibit C transcript, and has provided the [*4]Court with an audiotape of the hearing. In paragraph seven of the petition an alternative version of what transpired at the outset of the Tier III Superintendent's Hearing is suggested. According to the petitioner, after the hearing officer introduced himself and stated that he had been designated to conduct the hearing, the following colloquy occurred:
"Petitioner:No, I'm not going to let you have this. I've had a contact with you and you're already prejudiced against me. I have a contact with you, you told me not to contact you again after something that was very bad happened to me. I lost four hundred dollars because you guys let the defendant steal it from me or you stole it from me yourself. And you wouldn't allow me...
HO [hearing officer]:Well I'm the one that's been designated to hold your hearing...
Petitioner:Doesn't matter, you guys broke my hands, do you think I'm actually going to be cordial to someone who broke my hands? I want my lawyer, that's a felony assault. Sir, you're talking to someone who doesn't have much respect for your authority right now.
HO:Well, what I'm going to do is hold this hearing...
Petitioner:No, no, it doesn't matter what you say sir, doesn't matter what you say, I don't care.
HO:Remove him from the hearing, I'll hold the hearing in his absence based on the behavior."
This Court has carefully listened to the initial portion of the audiotape of the Tier III Superintendent's Hearing of November 30, 2004, and finds that the written version offered by the petitioner more accurately reflects the words that were spoken at that time. The petitioner relies heavily upon the fact that the petitioner initially stated "[n]o, I'm not going to let you [presumably, the hearing officer] have this," as opposed to "[n]o, . . . I'm not willing to have this," as erroneously reported in the Exhibit C transcript. According to the petitioner, his actual words ". . . in no way can be construed as a refusal to participate in his hearing. Petitioner's statement was clearly an objection to this particular HO conducting the hearing and reflected his concern that he would not receive a fair hearing . . . Not only did the respondent recast what petitioner said and obviously meant, but the HO did as well when he asserted during the hearing that petitioner stated he was gonna have nothing of this matter at the hearing,' and also on the 2176 forms where the HO asserted that petitioner stated that he was not gonna have this.'" The petitioner also takes exception to the Exhibit C transcript characterization of "inmate screaming." The petitioner contends that such characterization is a "clear exaggeration" and that the audiotape demonstrates that "[h]e raised his voice and no more." The petitioner also argues that the vulgar language directed at the hearing officer by the petitioner was not spoken until the hearing officer had already directed that the petitioner be removed from the hearing.
It is this Court's opinion that an inmate subject to a Tier III Superintendent's Hearing may waive his or her right to be present at the hearing in a number of different ways. Obviously, an [*5]inmate may simply refuse to leave his or her housing location at the time the hearing is scheduled to be conducted. In addition, an inmate may decline to participate in the hearing process even though he or she is physically present before the hearing officer. The Court also finds, however, that an inmate's waiver of his or her right to be present at a Tier III Superintendent's Hearing may be gleaned from relatively minor acts of disruptive behavior during the course of a hearing that an inmate is actively participating in. In each instance, of course, the inmate must be appropriately warned that he or she will be excluded and the hearing held/continued in his or her absence if the refusal to attend, refusal to participate or minor disruptive behavior persists. The Court finds that the unifying element in each waiver situation is that the inmate is in control of his or her conduct and, therefore, in position to digest the appropriate exclusion warning and make a determination whether or not to attend/participate in the hearing process or, as the case may be, refrain from minor disruptive behavior during the course of the hearing. However, once an inmate's conduct, whether physical or verbal, degenerates to the point where the inmate can be reasonably perceived as no longer in control of his or her actions/words, the concept underlying the exclusion warning requirement breaks down. Since an out-of-control inmate at a Tier III Superintendent's Hearing can not be expected to make a knowing, voluntary and intelligent decision as to whether or not to continue his or her out-of-control behavior, the hearing officer need not provide an exclusion warning prior to the exclusion of such an inmate from a Tier III Superintendent's Hearing. Rather, when confronted by an inmate whose physical or verbal conduct has degenerated to the point where the hearing officer reasonably perceives that rational decision making is no longer possible, the hearing officer may make an immediate determination to have the inmate removed from the Tier III Superintendent's Hearing based upon considerations of institutional safety and/or correctional goals. In reviewing a hearing officer's determination to exclude an inmate from a Tier III Superintendent's Hearing on that basis, the Court should bear in mind the following: "Prison disciplinary proceedings . . . take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so. Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means to attain their ends. They may have little regard for the safety of others . . . or for the rules designed to provide an orderly and reasonably safe prison life . . . [T]he inmates are closely supervised and their activities controlled around the clock. Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment and despair are commonplace . . . [T]he reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority . . . [T]he basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake . . ." Wolff v. McDonnell, 418 U.S. 539 at 561-562.
In the case at bar it matters little to the Court whether the petitioner's initial refusal to participate in the Tier III Superintendent's Hearing was motivated by an overall objection to the process or, rather, by a more narrow objection to the particular hearing officer designated to conduct the hearing. In either case, as long as the petitioner expressed his concerns/objections in [*6]a rational, controlled manner he could not be lawfully removed from the hearing without first being provided with the appropriate exclusion warnings. Upon listening to the audiotape of the outset of the Tier III Superintendent's Hearing, however, the Court was struck by how suddenly and dramatically petitioner's initial calm demeanor degenerated. While the Court agrees with the petitioner that he did not direct particularly vulgar language at the hearing officer until after the exclusion determination had been made, the Court finds that even prior to such exclusion the petitioner had, in a loud, out-of-control manner, interrupted the hearing officer's efforts to commence the hearing process. The Court further finds that although the characterization "inmate screaming" may indeed constitute an exaggeration of the level of petitioner's outburst, his own assertion that he simply "raised his voice and no more" is equally misleading. For all of these reasons the Court ultimately finds that the hearing officer did not err in directing the exclusion of the petitioner from the remainder of the Tier III Superintendent's Hearing without first providing the petitioner with a specific exclusion warning.
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ADJUDGED, that the petition is dismissed.
Dated:August 31 , 2005 at
Indian Lake, New York._________________________
S. Peter Feldstein
Acting Supreme Court Justice