Matter of Kimble v Fischer

Matter of Kimble v Fischer 2008 NY Slip Op 08394 [56 AD3d 879] November 6, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

In the Matter of Joseph Kimble, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Joseph Kimble, Pine City, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

During a frisk search, a correction officer observed what appeared to be a balloon in petitioner's mouth and ordered him to spit it out. Petitioner refused, seemingly swallowing the object, and punched the officer in the chest. As a result, petitioner was charged in a misbehavior report with smuggling, disobeying a direct order, violating frisk procedures, engaging in violent conduct and assaulting an employee. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding seeking annulment ensued.

We confirm. Substantial evidence including the misbehavior report and related documentation supports the determination of guilt (see Matter of Tayler v Selsky, 49 AD3d 1060, 1060 [2008]). Regarding petitioner's remaining procedural contentions, he has waived his right to pursue these claims inasmuch as the record establishes that he voluntarily refused to attend the hearing (see Matter of Tafari v Selsky, 37 AD3d 887, 888 [2007]).

Cardona, P.J., Mercure, Peters, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.