Green v Fischer

[*1] Green v Fischer 2013 NY Slip Op 50384(U) Decided on March 18, 2013 Supreme Court, Franklin County Feldstein, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2013
Supreme Court, Franklin County

Valarae Green, Petitioner, for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

Brian Fischer, Commissioner, NYS Department of Corrections and Community Supervision, Respondent.



2012-562

S. Peter Feldstein, J.

This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the Petition of Valarae Green, dated June 18, 2012 and filed in the Franklin County Clerk's office on June 28, 2012. Petitioner, who is now an inmate at the Wyoming Correctional Facility, is challenging the results of a Tier III Superintendent's Hearing held at the Franklin Correctional Facility on February 29, 2012. An Order to Show Cause was issued on July 3, 2012. The Court has received and reviewed respondent's Answer and Return, verified on August 6, 2012 and supported by the Letter Memorandum of Glen Francis Michaels, Esq., Assistant Attorney General in Charge, dated August 6, 2012. No Reply thereto has been received from petitioner.

By Letter Order dated December 20, 2012 the respondent was directed to supplement the record herein. In response thereto the Court has received the Supplemental Letter Memorandum of Glen Francis Michaels, Esq., Assistant Attorney General in Charge, including an in camera exhibit, supported by the Affidavit of Corrections Captain Dennis M. Martin, sworn to on January 9, 2013.

As the result of incidents that occurred at the Franklin Correctional Facility on February 27, 2012 petitioner was issued two inmate misbehavior reports. The first report, authored by C.O. Brown, charged petitioner with violating inmate rules 106.10 (direct order), 109.10 (out of place), 102.10 (threats), 104.11 (violent conduct) and 104.13 (disturbance). The second inmate misbehavior report, authored by C.O. Hutchins, charged petitioner with violating inmate rules 102.10 (threats), 104.13 (disturbance) and 104.11 (violent conduct). The specific details of the charges set forth in the two inmate misbehavior reports are not germane to the disposition of this proceeding. A Tier III Superintendent's Hearing was held, without petitioner present, at the Franklin Correctional Facility on February 29, 2012. At the conclusion of the hearing petitioner was found guilty of all seven charges and a disposition was imposed confining him to the special housing unit for 12 months (with 3 months suspended and deferred), recommending the loss of various privileges for a like period of time and directing the loss of 12 months good time. Upon [*2]administrative appeal the dispositional penalties were modified to confinement in the special housing unit for 4 months, the loss of various privileges for 6 months and the recommended loss of 6 months of good time. This proceeding ensued.

The only argument advanced by petitioner is that he was denied his right to attend the February 29, 2012 Tier III Superintendent's Hearing. According to petitioner, he was never informed that the hearing had been scheduled to take place much less that such hearing would proceed in his absence if he failed to attend.

"An inmate has a fundamental right to be present at a Superintendent's Hearing unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals' . . . When an inmate is denied his right to be present, the record must contain the basis underlying a hearing officer's determination." Holmes v. Drown, 23 AD3d 793, 794 (citations omitted). See also, 7 NYCRR §254.6(a)(2). "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). 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.

The Tier III Superintendent's Hearing that is the subject of this proceeding was commenced at the Franklin Correctional Facility at 1:23 PM on February 29, 2012. At the outset the hearing officer placed the following on the record: "Inmate Green has elected not to attend this hearing, hearing officer personally went to the cell and spoke to inmate Green about his refusal to attend this hearing, and I advised the inmate that this hearing would be conducted in his absence . . . Hearing Officer has filled out inmate refusal to attend form and has signed it in place of the inmate's signature . . . [T]he inmate has refused to sign the hearing form, this . . . request to attend the hearing was witnessed by Sergeant Tulip who also . . . signed the refusal to attend form as recorded as a witness . . . to the inmate's refusal. So with that being said the hearing officer will conduct this hearing . . . in the absence of inmate Green." The hearing officer then questioned Sergeant Tulip, on the record, as follows: "Hearing Officer:Sergeant Tulip ah, just a few moments ago, ah, were you present with me when I a [sic] asked Inmate Green about attending this hearing?Sergeant Tulip:Yes I was sir.Hearing Officer:And when I asked inmate to attend this hearing did you hear the inmate's response?Sergeant Tulip:He replied in the negative sir.Hearing Officer:Ok. And ah, during that I advised the inmate that if he refused to attend this hearing that the proceed [sic], it would be conducted [*3]in his absence, is that correct?Sergeant Tulip:Yes sir.Hearing Officer:Ok. And the inmate acknowledged that he understood that correct?Sergeant Tulip:Yes sir.Hearing Officer:Ok. And the, for the record ah, you signed and witnessed the inmate refusal to attend form is that correct?Sergeant Tulip:Yes I did sir."

The Court finds no evidence that petitioner was deprived of his right to attend the Tier III Superintendent's Hearing of February 29, 2012. The statement of the hearing officer and the testimony of Sergeant Tulip, as set fort above, adequately established that petitioner refused to attend the hearing despite being advised that the hearing would proceed in his absence.[FN1] See Rouse v. Fischer, 94 AD3d 1310 and Abreu v. Bezio, 84 AD3d 1596, app dis 17 NY3d 915. Petitioner's argument to the contrary notwithstanding, the Court finds that the hearing officer did not err in personally supervising the attempted escort of petitioner to the hearing.

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:March 18, 2013 at

Indian Lake, New York______________________

S. Peter Feldstein

Acting Supreme Court Judge Footnotes

Footnote 1: In his administrative appeal petitioner asserted that he was transferred from the Franklin Correctional Facility to the Upstate Correctional Facility at 10:30 AM on February 29, 2012. Since this allegation, while not repeated in the petition, tended to call into question the statement of the hearing officer that he and Sergeant Tulip spoke to the petitioner at his Franklin Correctional Facility cell "just a few moments" prior to the commencement of the hearing at 1:23 PM on February 29, 2012, the Court, by Letter Order dated December 20, 2012, directed the respondent to supplement the record with respect to this point. The documentary evidence submitted in response thereto indicates that petitioner was not transferred to the Upstate Correctional Facility until well after the conclusion of the hearing at 1:57 PM on February 29, 2012.