HOGAN, JOHN v. FISCHER, BRIAN ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1351
CA 10-01574
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.
IN THE MATTER OF JOHN HOGAN,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES,
RESPONDENT-RESPONDENT.
JOHN HOGAN, PETITIONER-APPELLANT PRO SE.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF
COUNSEL), FOR 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. 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
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CA 10-01574
“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