                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 6, 2014                   518515
________________________________

In the Matter of EON SHEPHERD,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

BRIAN FISCHER, as Commissioner
   of Corrections and
   Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Lahtinen, J.P., Stein, Garry, Rose and Egan Jr., JJ.

                             __________


     Eon Shepherd, Wallkill, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Franklin County)
to review a determination of the Superintendent of Downstate
Correctional Facility, a determination of the Superintendent of
Five Points Correctional Facility, and two determinations of
respondent which found petitioner guilty of violating certain
prison disciplinary rules.

      Petitioner refused orders issued on January 10, 2013,
January 24, 2013 and January 28, 2013 to prepare for transfer to
Five Points Correctional Facility, and had to eventually be
extracted from his cell so that the move could be effectuated.
He was accordingly charged with refusing a direct order and a
movement regulation violation in three misbehavior reports, one
for each of the incidents. Petitioner was found guilty as
                              -2-                518515

charged following a tier II disciplinary hearing on the first
report and tier III disciplinary hearings on the second and third
reports, and the determinations were affirmed upon administrative
appeal. After petitioner surreptitiously deactivated the device
that the Hearing Officer was using to record the disciplinary
hearing on the January 24, 2013 incident, he was charged in a
misbehavior report dated February 4, 2013 with tampering with
property and employee interference. He was found guilty as
charged following a tier II disciplinary hearing, and that
determination was affirmed upon administrative appeal.
Petitioner commenced this CPLR article 78 proceeding to challenge
all four determinations.

      Substantial evidence, including the misbehavior reports and
testimony at the hearings, supports the determinations with
regard to the January 10, 2013, January 24, 2013 and January 28,
2013 incidents. Petitioner asserted that he did not obey the
orders because he believed them to be improper but, regardless of
his belief, "he was not entitled to engage in . . . self-help" by
refusing to comply with them (Matter of Amaker v Bezio, 98 AD3d
1146, 1146-1147 [2012]; see Matter of Miller v Goord, 2 AD3d 928,
930 [2003]). To the extent that petitioner sought to introduce
documentary and testimonial evidence regarding his reasons for
resisting the transfer orders, those requests were properly
denied on relevance grounds (see Matter of Miller v Goord, 2 AD3d
at 930).

      The misbehavior report of February 4, 2013, and material
considered at the ensuing hearing, provide substantial evidence
to support the determination with regard thereto (see Matter of
Franza v Venettozzi, 98 AD3d 782, 783 [2012]). The Hearing
Officer learned that petitioner was refusing to attend the
hearing without offering an explanation and was free to conduct
the hearing in petitioner's absence after questioning two
correction officers regarding petitioner's absence and learning
that he "refused to attend the hearing[] or sign [a] written
waiver[] although he was advised of the consequences of doing so"
(Matter of Abbas v Selsky, 22 AD3d 982, 983 [2005]).

      Petitioner's remaining contentions, to the extent they are
properly preserved for review, have been examined and found to
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lack merit.

      Lahtinen, J.P., Stein, Garry, Rose and Egan Jr., JJ.,
concur.



      ADJUDGED that the determinations are confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
