Behavior Did Not Warrant Removal from Hearing

In annulling the determination because the inmate’s behavior did not warrant his removal from the hearing, the Third Department wrote:

It is well settled that “[a]n inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” … . Here, petitioner objected to the continuation of the hearing after the prior Hearing Officer’s recusal.  It appears that the Hearing Officer became frustrated with petitioner’s unwillingness to move forward and warned him that he could be removed. Petitioner then ceased objecting, entered his pleas of not guilty to the charges and stated that he wished to put “a lot” on the record.  However, he then twice asked a question that the Hearing Officer apparently deemed irrelevant, and was abruptly removed from the hearing.  Under these circumstances, we do not find that petitioner’s conduct rose to the level of disruption that warranted excluding him from the remainder of the hearing… . Matter of German v Fischer, 515746, 3rd Dept 7-25-13