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In the Matter of John Hogan v. Brian Fischer

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 23, 2011

IN THE MATTER OF JOHN HOGAN,
PETITIONER-APPELLANT,
v.
BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES,
RESPONDENT-RESPONDENT.

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered June 25, 2010 in a proceeding pursuant to CPLR article 78.

Matter of Matter of Hogan v Fischer

Decided on December 23, 2011

Appellate Division, Fourth 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.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.

The judgment denied the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:

Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a Tier III hearing, that he violated inmate rules 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusal to obey orders]) and 109.12 (7 NYCRR 270.2 [B] [10] [iii] [failure to follow directions relating to movement within the facility]). Petitioner contends that he had a valid excuse for refusing to obey an order to move to a new cell and thus that his violation of those rules was justified. We reject that contention. "[A]lthough petitioner claims that he did not leave [his] cell because he feared for his safety, inmates are not free to choose which orders to obey and which to ignore" (Matter of Farid v Coombe, 236 AD2d 660). " Any holding to the contrary would simply encourage inmates to break rules as a means of addressing their grievances and invite chaos' " (Matter of Rivera v Smith, 63 NY2d 501, 515-516).

Contrary to petitioner's further contention, his "conditional right to call witnesses was not violated because the witnesses who were not called would have provided redundant testimony" (Matter of Robinson v Herbert, 269 AD2d 807). In addition, petitioner's contention that the Hearing Officer improperly denied his request for documentary evidence is without merit because "the documentary evidence sought by petitioner . . . was not in dispute" (Matter of Davis v Goord, 46 AD3d 955, 956, lv dismissed 10 NY3d 821), and did "not include any information exonerating petitioner of his guilt" (Matter of Seymour v Goord, 24 AD3d 831, 832, lv denied 6 NY3d 711).

Also contrary to petitioner's contention, "[t]he Hearing Officer obtained valid extensions and the hearing was completed within the extended time period" (Matter of Edwards v Fischer, 87 AD3d 1328, 1329). Petitioner's contention that Supreme Court should have granted his motion for recusal because the court was biased against him similarly lacks merit. " Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal . . . [and a] court's decision in this respect may not be overturned unless it was an abuse of discretion' " (People v Williams, 66 AD3d 1440, 1441, lv dismissed 13 NY3d 911, quoting People v Moreno, 70 NY2d 403, 405-406). We perceive no abuse of discretion here.

We have reviewed petitioner's remaining contentions and conclude that they are without merit.

Entered: December 23, 2011

Frances E. Cafarell Clerk of the Court

20111223

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