Tafari v. Selsky

31 A.D.3d 1087, 819 N.Y.S.2d 349

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 2006
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered December 5, 2005 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with creating a disturbance after he started banging on his cell door and yelling at a captain who was making rounds on his floor. Although he initially attended the tier III disciplinary hearing, he refused to attend following two adjournments or to execute waiver forms. The Hearing Officer proceeded with the hearing in petitioner’s absence and found him guilty of the charge. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition, resulting in this appeal.

We affirm. The record reveals that the Hearing Officer took the necessary steps to ascertain the legitimacy of petitioner’s refusal and unwillingness to sign a waiver by questioning the officers present at the time. Inasmuch as petitioner forfeited his right to attend the remainder of the hearing, the Hearing Officer properly continued it in his absence (see Matter of Shannon v Goord, 284 AD2d 680 [2001]; Matter of Dexter v Goord, 257 AD2d 936 [1999]). By his conduct, petitioner waived his right to raise his procedural claim that he was denied witnesses (see Matter of Johnson v Racette, 282 AD2d 899, 900 [2001]; Matter of Kalwasinski v Senkowski, 244 AD2d 738, 739 [1997]).

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.