In the Matter of MARCUS A. MICOLO, Appellant,
ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Calendar Date: June 12, 2017
A. Micolo, Dannemora, appellant pro se.
T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of
counsel), for respondent.
Before: McCarthy, J.P., Lynch, Rose, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Ferreira, J.), entered
July 5, 2016 in Albany 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
was charged in a misbehavior report with assault, making
threats, violent conduct, creating a disturbance, refusing a
direct order, interfering with an employee, lying,
destruction of state property and committing an unhygienic
act. Petitioner attended the first day of the ensuing tier
III disciplinary hearing. On the second day of the hearing,
correction officers arrived at petitioner's cell to
transport him to the hearing room. Petitioner complained that
the restraint devices applied by the officers were too tight
and he refused to go to the hearing. The hearing was
continued in his absence, resulting in petitioner being found
not guilty of lying, but guilty of the remaining charges. The
determination was upheld on administrative appeal and
petitioner commenced this CPLR article 78 proceeding. Supreme
Court dismissed the petition, and petitioner now appeals.
inmate has a fundamental right to be present at his or her
disciplinary hearing and, in order for an inmate to make a
knowing, voluntary and intelligent waiver of that right, he
or she must be informed of that right and of the consequences
of failing to appear at the hearing" (Matter of Rush
v Goord, 2 A.D.3d 1185, 1186  [citations and
emphasis omitted]; see Matter of Tafari v Selsky, 40
A.D.3d 1172, 1173 ). Here, while there was testimony at
the continuation of the hearing that the correction officers
assigned to transport petitioner advised him that the hearing
would continue in his absence, a videotape of the interaction
between petitioner and the officers that resulted in his
refusal to attend the hearing reveals no such advisement.
Notably, the correction officer did not elaborate on the
reason for petitioner's refusal, and the Hearing Officer
did not inquire (see Matter of Brooks v James, 105
A.D.3d 1233, 1234 ). Although the record also contains
a written form, signed by one of the correction officers
assigned to transport petitioner to the hearing, attesting to
the fact that petitioner was aware of the consequences of his
refusal, petitioner did not sign the form and there is no
indication on the form or anywhere else in the record as to
the steps taken to either "ascertain the legitimacy of
petitioner's refusal or to inform him of... the
consequences of his failure to [attend]" (Matter of
Wilson v Annucci, 148 A.D.3d 1281, 1283 ; see
Matter of Tafari v Selsky, 40 A.D.3d at 1173; cf.
Matter of Safford v Annucci, 144 A.D.3d 1271, 1272
, lv denied 29 N.Y.3d 901');">29 N.Y.3d 901 ; Matter
of Daniels v Annucci, 142 A.D.3d 1207, 1208 ;
Matter of Toliver v New York State Commr. of Corr. &
Community Supervision, 114 A.D.3d 987, 988 ;
Matter of Watson v Fischer, 98 A.D.3d 1171, 1172
). Respondent's reliance on Matter of Weems v
Fischer (75 A.D.3d 681, 682 , appeal
dismissed 15 N.Y.3d 917');">15 N.Y.3d 917 ) and Matter of Sowell
v Fischer (116 A.D.3d 1308, 1309 , appeal
dismissed 24 N.Y.3d 933');">24 N.Y.3d 933 ) to assert that
petitioner forfeited his right to be present is unavailing
because the hearing was not nearing completion at the time of
the refusal. In light of the foregoing, we cannot conclude
that petitioner knowingly, intelligently and voluntarily
relinquished his right to attend the hearing (see Matter
of Wilson v Annucci, 148 A.D.3d at 1284; Matter of
Tafari v Selsky, 40 A.D.3d at 1173; Matter of Rush v
Goord, 2 A.D.3d at 1186). As a result, expungement is
required (see Matter of Brooks v James, 105 A.D.3d
at 1234 ).
McCarthy, J.P., Lynch, Rose, Clark and Rumsey, JJ., concur.
that the judgment is reversed, on the law, without costs,
petition granted, determination annulled and respondent is
directed to expunge all references to this ...