SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1351 

CA 10-01574 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ. 

 

IN THE MATTER OF JOHN HOGAN, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE 

DEPARTMENT OF CORRECTIONAL SERVICES, 

RESPONDENT-RESPONDENT. 

 

JOHN HOGAN, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF

COUNSEL), FOR RESPONDENT-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Wyoming County (Mark

H. Dadd, A.J.), entered June 25, 2010 in a proceeding pursuant to CPLR

article 78. The judgment denied the petition. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination, following a Tier III hearing, that

he violated inmate rules 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusal to

obey orders]) and 109.12 (7 NYCRR 270.2 [B] [10] [iii] [failure to

follow directions relating to movement within the facility]). 

Petitioner contends that he had a valid excuse for refusing to obey an

order to move to a new cell and thus that his violation of those rules

was justified. We reject that contention. “[A]lthough petitioner

claims that he did not leave [his] cell because he feared for his

safety, inmates are not free to choose which orders to obey and which

to ignore” (Matter of Farid v Coombe, 236 AD2d 660). “ ‘Any holding

to the contrary would simply encourage inmates to break rules as a

means of addressing their grievances and invite chaos’ ” (Matter of

Rivera v Smith, 63 NY2d 501, 515-516). 

Contrary to petitioner’s further contention, his “conditional

right to call witnesses was not violated because the witnesses who

were not called would have provided redundant testimony” (Matter of

Robinson v Herbert, 269 AD2d 807). In addition, petitioner’s

contention that the Hearing Officer improperly denied his request for

documentary evidence is without merit because “the documentary

evidence sought by petitioner . . . was not in dispute” (Matter of

Davis v Goord, 46 AD3d 955, 956, lv dismissed 10 NY3d 821), and did
-2- 1351 

CA 10-01574 

“not include any information exonerating petitioner of his guilt”

(Matter of Seymour v Goord, 24 AD3d 831, 832, lv denied 6 NY3d 711).

Also contrary to petitioner’s contention, “[t]he Hearing Officer

obtained valid extensions and the hearing was completed within the

extended time period” (Matter of Edwards v Fischer, 87 AD3d 1328,

1329). Petitioner’s contention that Supreme Court should have granted

his motion for recusal because the court was biased against him

similarly lacks merit. “ ‘Absent a legal disqualification under

Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal . . .

[and a] court’s decision in this respect may not be overturned unless

it was an abuse of discretion’ ” (People v Williams, 66 AD3d 1440,

1441, lv dismissed 13 NY3d 911, quoting People v Moreno, 70 NY2d 403,

405-406). We perceive no abuse of discretion here. 

We have reviewed petitioner’s remaining contentions and conclude

that they are without merit.

Entered: December 23, 2011 Frances E. Cafarell

Clerk of the Court