                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 30, 2015                    519485
________________________________

In the Matter of MICHEL
   TOLIVER,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   February 24, 2015

Before:   Garry, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Michel Toliver, Wallkill, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondents.

                             __________


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

      Petitioner, an inmate, was involved in an incident in which
he began yelling obscenities from his cell that continued after
he was ordered to stop. He was charged in a misbehavior report
with creating a disturbance, refusing a direct order and
interfering with an employee. Following a tier II disciplinary
hearing, petitioner was found guilty of creating a disturbance
and refusing a direct order, but not guilty of interfering with
an employee. The determination was affirmed on administrative
                                 -2-                519485

appeal and this CPLR article 78 proceeding ensued.1

      We confirm. Initially, contrary to petitioner's
contention, the record reflects that he was served a copy of the
misbehavior report at least 24 hours prior to the commencement of
the hearing (see 7 NYCRR 254.6 [a] [1]). We further reject
petitioner's claim that he was improperly removed from the
hearing. Petitioner became extremely agitated during the hearing
and requested to be taken to the mental health unit. The Hearing
Officer adjourned the hearing to afford an opportunity for a
facility mental health social worker to evaluate petitioner.
Following the evaluation, the social worker testified that she
found no mental health issues that would prevent petitioner from
properly participating in the hearing. After the hearing
resumed, petitioner again became agitated and uncooperative,
despite the Hearing Officer's warning that he would be expelled
from the hearing if his conduct persisted (see Matter of
Alsaifullah v Fischer, 118 AD3d 1239, 1240 [2014], lv denied 24
NY3d 906 [2014]). Under these circumstances, we cannot say that
the Hearing Officer abused his discretion in removing petitioner
from the hearing (see Matter of Huggins v Noeth, 106 AD3d 1351,
1352 [2013]; Matter of Blocker v Hetrick, 100 AD3d 1302, 1303
[2012]). We have considered petitioner's remaining claims and
find them to be lacking in merit.

         Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.




     1
        Although the proceeding should not have been transferred
inasmuch as the petition does not raise a question of substantial
evidence, we nevertheless will retain jurisdiction in the
interest of judicial economy (see Matter of Selah v LaValley, 117
AD3d 1261, 1261 n [2014]).
                              -3-                  519485

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
