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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Steven LASHWAY, Petitioner, v. Frank IRVIN, Superintendent, Wende Correctional Facility, et al., Respondents.

Decided: December 31, 1998

Present:  GREEN, J.P., WISNER, PIGOTT, Jr., CALLAHAN and FALLON, JJ. Steven Lashway, Alden, pro se. Wayne Benjamin by Siobhan Crary, Albany, for respondents.

Petitioner challenges the continuation of his Tier III hearing in his absence after he was forcibly removed from the hearing room for alleged inappropriate behavior.   According to an affidavit of the Hearing Officer and memoranda from correction officers who subdued petitioner, as the hearing commenced, petitioner put his hand into his pocket and pulled it out with his fist clenched.   Petitioner was restrained by a correction officer and attempted to bite, kick and spit at various correction officers.   That documentation establishes that petitioner's continued presence at the hearing would have jeopardized institutional safety (see, 7 NYCRR 254.6[b];  see also, Matter of Sanders v. Coughlin, 168 A.D.2d 719, 721, 564 N.Y.S.2d 496, lv. denied 77 N.Y.2d 806, 568 N.Y.S.2d 914, 571 N.E.2d 84).

The determination finding petitioner guilty of violating inmate rule 106.10 (see, 7 NYCRR 270.2[B][7][i] ) is supported by substantial evidence, i.e., the misbehavior report, supplemented by a videotape of the incident that was reviewed by the Hearing Officer before she made her determination (see generally, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).

Determination unanimously confirmed without costs and petition dismissed.