Matter of Toliver v New York State Dept. of Corrections & Community Supervision

Matter of Toliver v New York State Dept. of Corrections & Community Supervision 2015 NY Slip Op 03599 Decided on April 30, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 30, 2015
519485

[*1]In the Matter of MICHEL TOLIVER, Petitioner,

v

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.

Calendar Date: February 24, 2015
Before: Garry, J.P., Egan Jr., Devine and Clark, JJ.

Michel Toliver, Wallkill, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

MEMORANDUM AND JUDGMENT

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

Petitioner, an inmate, was involved in an incident in which he began yelling obscenities from his cell that continued after he was ordered to stop. He was charged in a misbehavior report with creating a disturbance, refusing a direct order and interfering with an employee. Following a tier II disciplinary hearing, petitioner was found guilty of creating a disturbance and refusing a direct order, but not guilty of interfering with an employee. The determination was affirmed on administrative

appeal and this CPLR article 78 proceeding ensued.[FN1]

We confirm. Initially, contrary to petitioner's contention, the record reflects that he was served a copy of the misbehavior report at least 24 hours prior to the commencement of the hearing (see 7 NYCRR 254.6 [a] [1]). We further reject petitioner's claim that he was improperly removed from the hearing. Petitioner became extremely agitated during the hearing and requested to be taken to the mental health unit. The Hearing Officer adjourned the hearing to afford an opportunity for a facility mental health social worker to evaluate petitioner. Following the evaluation, the social worker testified that she found no mental health issues that would prevent petitioner from properly participating in the hearing. After the hearing resumed, petitioner again became agitated and uncooperative, despite the Hearing Officer's warning that he would be expelled from the hearing if his conduct persisted (see Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1240 [2014], lv denied 24 NY3d 906 [2014]). Under these circumstances, we cannot say that the Hearing Officer abused his discretion in removing petitioner from the hearing (see Matter of Huggins v Noeth, 106 AD3d 1351, 1352 [2013]; Matter of Blocker v Hetrick, 100 AD3d 1302, 1303 [2012]). We have considered petitioner's remaining claims and find them to be lacking in merit.

Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

Footnotes

Footnote 1: Although the proceeding should not have been transferred inasmuch as the petition does not raise a question of substantial evidence, we nevertheless will retain jurisdiction in the interest of judicial economy (see Matter of Selah v LaValley, 117 AD3d 1261, 1261 n [2014]).