Matter of Marie v Goord

Decided and Entered: November 16, 2006 500811 ________________________________ In the Matter of REGINALD J. MARIE, Appellant, v GLENN S. GOORD, as Commissioner of Correctional Services, Respondent. ________________________________ Calendar Date: October 18, 2006 Before: Carpinello, J.P., Rose, Lahtinen and Kane, JJ. __________ Stacy L. Graczyk, Prisoners’ Legal Services, Plattsburgh, for appellant. Eliot Spitzer, Attorney General, Albany (Frank Brady of counsel), for respondent. __________ Carpinello, J.P. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 1, 2005 in Franklin County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged in two misbehavior reports with violating the prison disciplinary rules prohibiting fighting, engaging in violent conduct, creating a disturbance, assaulting staff, refusing a direct order and refusing to be frisked. At the ensuing tier III disciplinary hearing, the Hearing Officer ordered that petitioner be removed because of his unruly conduct. The hearing continued in petitioner’s absence and he was ultimately found guilty of all charges. Petitioner thereafter commenced this CPLR article 78 proceeding alleging that his due process right to be present at the hearing had been violated. Supreme Court dismissed the petition, prompting this appeal. We affirm. The record reveals that, at the start of the hearing, petitioner advised the Hearing Officer that he did not respect his authority. As the hearing progressed, petitioner became increasingly disruptive by speaking loudly and interrupting the Hearing Officer. Thus, in view of petitioner’s argumentative and uncooperative behavior, we cannot say that the Hearing Officer’s decision to remove him from the hearing was in error (see Matter of Raqiyb v Goord, 24 AD3d 1013, 1013 [2005]; Matter of Polanco v Bennett, 6 AD3d 846, 846 [2004]; Matter of Webb v Goord, 269 AD2d 641, 642 [2000]). Rose, Lahtinen and Kane, JJ., concur. ORDERED that the judgment is affirmed, without costs.