second day hearing in New York

2014It is well established, however, that a petitioner may properly be removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive (see Matter of Canty v Fischer, 92 AD3d 1055, 1056 [2012], lv denied, 19 NY3d 802 [2012]; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]).

2014It is well established, however, that a petitioner may properly be removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive (see Matter of Canty v Fischer, 92 AD3d 1055, 1056 [2012], lv denied, 19 NY3d 802 [2012]; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]).

2014It is well established, however, that a petitioner may properly be removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive (see Matter of Canty v Fischer, 92 AD3d 1055, 1056 [2012], lv denied, 19 NY3d 802 [2012]; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]).

2014It is well established, however, that a petitioner may properly be removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive (see Matter of Canty v Fischer, 92 AD3d 1055, 1056 [2012], lv denied, 19 NY3d 802 [2012]; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]).

2014Petitioner argues that his exclusion from the second day of the hearing requires annulment and expungement. “[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” (Matter of German v Fischer, 108 AD3d 998, 999 [2013] [internal quotation marks and citation omitted]).

2014Petitioner argues that his exclusion from the second day of the hearing requires annulment and expungement. “[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” (Matter of German v Fischer, 108 AD3d 998, 999 [2013] [internal quotation marks and citation omitted]).

2014It is well established, however, that a petitioner may properly be removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive (see Matter of Canty v Fischer, 92 AD3d 1055, 1056 [2012], lv denied, 19 NY3d 802 [2012]; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]).

2014It is well established, however, that a petitioner may properly be removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive (see Matter of Canty v Fischer, 92 AD3d 1055, 1056 [2012], lv denied, 19 NY3d 802 [2012]; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]).

2013We discern no error or abuse of discretion, particularly given that no good cause was offered for their absence. 3 Further, the request was untimely in that the notice of hearing had clearly advised petitioner and counsel that any requests for adjournments, among other requirements, had to be made “at least five days prior to the scheduled hearing date,” and they were informed at the outset of the first hearing that it could continue in their absence (see Matter of Kosich v New York State Dept. of Health, 49 AD3d at 982-983 ; Matter of Lawrence v DeBuono, 251 AD2d 700, 702 [1998]; Matter of Ro

2013We discern no error or abuse of discretion, particularly given that no good cause was offered for their absence. 3 Further, the request was untimely in that the notice of hearing had clearly advised petitioner and counsel that any requests for adjournments, among other requirements, had to be made “at least five days prior to the scheduled hearing date,” and they were informed at the outset of the first hearing that it could continue in their absence (see Matter of Kosich v New York State Dept. of Health, 49 AD3d at 982-983 ; Matter of Lawrence v DeBuono, 251 AD2d 700, 702 [1998]; Matter of Ro

2013We discern no error or abuse of discretion, particularly given that no good cause was offered for their absence. 3 Further, the request was untimely in that the notice of hearing had clearly advised petitioner and counsel that any requests for adjournments, among other requirements, had to be made “at least five days prior to the scheduled hearing date,” and they were informed at the outset of the first hearing that it could continue in their absence (see Matter of Kosich v New York State Dept. of Health, 49 AD3d at 982-983 ; Matter of Lawrence v DeBuono, 251 AD2d 700, 702 [1998]; Matter of Ro

2013We discern no error or abuse of discretion, particularly given that no good cause was offered for their absence. 3 Further, the request was untimely in that the notice of hearing had clearly advised petitioner and counsel that any requests for adjournments, among other requirements, had to be made “at least five days prior to the scheduled hearing date,” and they were informed at the outset of the first hearing that it could continue in their absence (see Matter of Kosich v New York State Dept. of Health, 49 AD3d at 982-983 ; Matter of Lawrence v DeBuono, 251 AD2d 700, 702 [1998]; Matter of Ro

2013We discern no error or abuse of discretion, particularly given that no good cause was offered for their absence. 3 Further, the request was untimely in that the notice of hearing had clearly advised petitioner and counsel that any requests for adjournments, among other requirements, had to be made “at least five days prior to the scheduled hearing date,” and they were informed at the outset of the first hearing that it could continue in their absence (see Matter of Kosich v New York State Dept. of Health, 49 AD3d at 982-983 ; Matter of Lawrence v DeBuono, 251 AD2d 700, 702 [1998]; Matter of Ro

2013We discern no error or abuse of discretion, particularly given that no good cause was offered for their absence. 3 Further, the request was untimely in that the notice of hearing had clearly advised petitioner and counsel that any requests for adjournments, among other requirements, had to be made “at least five days prior to the scheduled hearing date,” and they were informed at the outset of the first hearing that it could continue in their absence (see Matter of Kosich v New York State Dept. of Health, 49 AD3d at 982-983 ; Matter of Lawrence v DeBuono, 251 AD2d 700, 702 [1998]; Matter of Ro

2024Where the police officer has probable cause to believe the driver committed a traffic violation, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant ( see People v Addison , 199 AD3d 1321, 1322 [4th Dept 2021] (internal citations omitted)).

2020Two additional correction officers, who witnessed petitioner's refusal to attend the hearing, also executed an inmate refusal form, which petitioner refused to sign, documenting petitioner's refusal to attend the hearing and informing him that the hearing would continue in his absence and that a penalty may be imposed ( see Matter of Bouknight v Annucci , 181 AD3d at 1080; Matter of Douglas v Bedard , 134 AD3d 1317, 1317 [2015]).

2020Two additional correction officers, who witnessed petitioner's refusal to attend the hearing, also executed an inmate refusal form, which petitioner refused to sign, documenting petitioner's refusal to attend the hearing and informing him that the hearing would continue in his absence and that a penalty may be imposed ( see Matter of Bouknight v Annucci , 181 AD3d at 1080; Matter of Douglas v Bedard , 134 AD3d 1317, 1317 [2015]).

2018Supreme Court "failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney" ( Matter of Soldato v Caringi , 137 AD3d 1749 , 1749 [4th Dept 2016]), and failed to grant the father an adjournment at the outset of the second day of the hearing when he requested the assistance of counsel ( see Matter of Hassig v Hassig , 34 AD3d 1089, 1090 [3d Dept 2006]).

2018To the extent that the father thereafter chose to proceed pro se, the court also failed to "engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel" ( Soldato , 137 AD3d at 1749; see Matter of Girard v Neville , 137 AD3d 1589, 1590 [4th Dept 2016]; Matter of Pugh v Pugh , 125 AD3d 663, 664 [2d Dept 2015]).

2018Supreme Court "failed to inform the father of his right to have counsel assigned if he could not afford to retain an attorney" ( Matter of Soldato v Caringi , 137 AD3d 1749 , 1749 [4th Dept 2016]), and failed to grant the father an adjournment at the outset of the second day of the hearing when he requested the assistance of counsel ( see Matter of Hassig v Hassig , 34 AD3d 1089, 1090 [3d Dept 2006]).

2018To the extent that the father thereafter chose to proceed pro se, the court also failed to "engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel" ( Soldato , 137 AD3d at 1749; see Matter of Girard v Neville , 137 AD3d 1589, 1590 [4th Dept 2016]; Matter of Pugh v Pugh , 125 AD3d 663, 664 [2d Dept 2015]).

2018To the extent that the father thereafter chose to proceed pro se, the court also failed to "engage the father in the requisite searching inquiry concerning his decision to proceed pro se and thereby ensure that the father was knowingly, intelligently and voluntarily waiving his right to counsel" ( Soldato , 137 AD3d at 1749; see Matter of Girard v Neville , 137 AD3d 1589, 1590 [4th Dept 2016]; Matter of Pugh v Pugh , 125 AD3d 663, 664 [2d Dept 2015]).

2015The mother’s failure to appear on the second day of the hearing due to her incarceration was not a reasonable excuse for her default, because she did not explain why she failed to notify her attorney or the court of her imprisonment (see Matter of Fa’Shon S., 40 AD3d 863 [2007]; Matter of Tiffany L., 294 AD2d 365 , 366 [2002]; Matter of Raymond Anthony A., 192 AD2d 529, 530 [1993]).

2012We are of the view that, although County Court found that the People had failed to establish the reasonableness of the photo array identification procedure, inasmuch as the People offered no evidence regarding an independent source on the first day of the hearing — and the court did not determine the merits of such issue — and the second day of the hearing was limited to testimony in that regard, the conduct of a bifurcated Wade hearing did not provide the People with an opportunity to tailor the evidence and was, therefore, entirely proper (see People v Havelka, 45 NY2d 636, 643 [1978]; Peopl

2012We are of the view that, although County Court found that the People had failed to establish the reasonableness of the photo array identification procedure, inasmuch as the People offered no evidence regarding an independent source on the first day of the hearing — and the court did not determine the merits of such issue — and the second day of the hearing was limited to testimony in that regard, the conduct of a bifurcated Wade hearing did not provide the People with an opportunity to tailor the evidence and was, therefore, entirely proper (see People v Havelka, 45 NY2d 636, 643 [1978]; Peopl

2012We are of the view that, although County Court found that the People had failed to establish the reasonableness of the photo array identification procedure, inasmuch as the People offered no evidence regarding an independent source on the first day of the hearing — and the court did not determine the merits of such issue — and the second day of the hearing was limited to testimony in that regard, the conduct of a bifurcated Wade hearing did not provide the People with an opportunity to tailor the evidence and was, therefore, entirely proper (see People v Havelka, 45 NY2d 636, 643 [1978]; Peopl