Opinion
May 17, 1984
Appeal from a judgment of the Supreme Court at Special Term (Hughes, J.), entered April 15, 1983 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of a superintendent's proceeding finding petitioner guilty of violating certain disciplinary rules. ¶ Petitioner was an inmate at Great Meadow Correctional Facility. On June 4, 1982, while in the mess hall, he was ordered by a correction officer to take a particular seat. He refused to do so and, instead, displayed gross insubordination by using profanity toward the officer and threatening him. The confrontation was of such a nature in a crowded mess hall that a major disturbance was possible. The following day, petitioner was directed to appear before an adjustment committee and charged with the following misconduct: refusing to obey a direct order; creating a disturbance; threatening an employee; and failing to produce an identification card. At the adjustment committee hearing conducted on June 5, 1982, petitioner denied any wrongdoing other than his failure to produce his identification card. ¶ The next day, petitioner received a notice to appear before another adjustment committee to answer charges that he had violated facility rule 1.56, which is failure or refusal to abide by the counseling of an adjustment committee. Petitioner refused to attend this adjustment committee proceeding. The adjustment committee proceeded in his absence and directed that the charges levied against him in that and the prior proceeding be referred to a superintendent's proceeding for disposition. Petitioner received notice of the superintendent's proceeding on June 8, 1982. The notice read, in pertinent part, as follows: ¶ "Charge #2: Violation of Rule 1.56 Failure or Refusal to Follow the Advice and Counseling of the Adjustment Committee. ¶ "On 6/5/82 you appeared before the Adjustment Committee for violation of rules 1.90 Refusing a Direct Order, 1.25 Disturbance, 2.30 Threats and 6.2 I.D. Cards. Your Record Card was reviewed and shows that you display a pattern of refusing to abide by Rules and Regulations, thus you have persistently failed to follow the advice and counseling of the Adjustment Committee. The Adjustment Committee also states that you have a poor attitude when you appear before them." An initial proceeding was conducted on June 10 and adjourned to June 22, 1982. On the adjourned day, petitioner refused to attend. The superintendent's proceeding went on in his absence and resulted in a decision which found petitioner guilty of the misconduct charged and imposed various penalties. ¶ Thereafter, petitioner commenced this CPLR article 78 proceeding challenging the determination of the superintendent's proceeding. Special Term denied the petition upon the principle that an inmate who attempts to frustrate the orderly disposition of disciplinary charges by refusing to attend administrative hearings waives any right to challenge the result thereof because of alleged procedural irregularities. We agree (see People ex rel. Morgan v La Vallee, 49 A.D.2d 652, mot for lv to app den 37 N.Y.2d 710). ¶ Our resolution of the waiver issue makes it unnecessary to address the remaining issues raised. ¶ Judgment affirmed, without costs. Mahoney, P.J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.