Beyah v. Leonardo

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Washington County) to review five determinations of respondents finding petitioner guilty of violating certain prison disciplinary rules. Insofar as petitioner failed to appeal the determination of guilt with respect to his first administrative hearing, the portion of his petition seeking review of that determination should be dismissed for failure to exhaust administrative remedies (see, Matter of Sanchez v Reid, 121 AD2d 548). Furthermore, in examining the record, the arguments petitioner raises with respect to that hearing fail to show such prejudice as would justify a departure from the general rule requiring exhaustion of administrative remedies (see, Matter of Crowley v O’Keefe, 148 AD2d 816, appeal dismissed 74 NY2d 780, lv denied 74 NY2d 613). As to his contention that he was improperly excluded from the fourth hearing, he refused to answer the Hearing Officer's questions or to even enter a plea, and he was informed that if he refused to cooperate the hearing would continue without him. There being sufficient evidence that petitioner was aware that the failure to follow procedures would preclude his attendance, we find no error in the decision to continue the hearing in absentia (see, Matter of Sanders v Coughlin, 168 AD2d 719, lv denied 77 NY2d 806). Equally without merit is the claim that the Hearing Officers at the second and third hearings were not impartial. The record fails to disclose any evidence of bias (see, Matter of Aviles v Scully, 162 AD2d 451). Finally, the misbehavior reports either alone or coupled with the testimony taken at the hearings constitute substantial evidence to support the determinations of guilt (see, Matter of Foster v Coughlin, 156 AD2d 806, affd 76 NY2d 964; Matter of McClean v LeFevre, 142 AD2d 911). Petitioner’s remaining allegations have been considered and rejected as lacking in merit. Weiss, P. J., Crew III, Mahoney, Casey and Harvey, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.