Allen v. Fischer

Appellate Division of the Supreme Court of New York

Allen v. Fischer

107 A.D.3d 1248, 966 N.Y.S.2d 921

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 20, 2013

StatusPublished

This text of 107 A.D.3d 1248 (Allen v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allen v. Fischer, 107 A.D.3d 1248, 966 N.Y.S.2d 921 (N.Y. Ct. App. 2013).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Superintendent of Wende Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

[1249]*1249While a group of inmates were returning from the recreation yard to their cells, a correction officer observed petitioner engaged in a physical altercation with another inmate. The officer gave them several direct orders to stop fighting, which were ignored. Eventually, however, they stopped. Thereafter, petitioner was charged in a misbehavior report with fighting, refusing a direct order, creating a disturbance and engaging in violent conduct. He was found guilty of the charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Initially, inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the determination of guilt with respect to that charge (see Matter of Toste v Fischer, 95 AD3d 1511, 1512 [2012]; Matter of Nunez v Unger, 93 AD3d 986, 986 [2012]). As for the remaining charges, the detailed misbehavior report provides substantial evidence of petitioner’s guilt (see Matter of Walker v Bezio, 96 AD3d 1268 [2012]; Matter of Encarnacion v Bellnier, 89 AD3d 1301, 1302 [2011]). Although petitioner maintained that he was the victim of the assault and that the report was false, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Lamage v Fischer, 100 AD3d 1176, 1176 [2012]; Matter of Roussopoulas v Cunningham, 76 AD3d 730, 731 [2010]). Accordingly, we find no reason to disturb the determination of guilt.

Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Superintendent of Wende Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

[1249]*1249While a group of inmates were returning from the recreation yard to their cells, a correction officer observed petitioner engaged in a physical altercation with another inmate. The officer gave them several direct orders to stop fighting, which were ignored. Eventually, however, they stopped. Thereafter, petitioner was charged in a misbehavior report with fighting, refusing a direct order, creating a disturbance and engaging in violent conduct. He was found guilty of the charges following a tier II disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Initially, inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the determination of guilt with respect to that charge (see Matter of Toste v Fischer, 95 AD3d 1511, 1512 [2012]; Matter of Nunez v Unger, 93 AD3d 986, 986 [2012]). As for the remaining charges, the detailed misbehavior report provides substantial evidence of petitioner’s guilt (see Matter of Walker v Bezio, 96 AD3d 1268 [2012]; Matter of Encarnacion v Bellnier, 89 AD3d 1301, 1302 [2011]). Although petitioner maintained that he was the victim of the assault and that the report was false, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Lamage v Fischer, 100 AD3d 1176, 1176 [2012]; Matter of Roussopoulas v Cunningham, 76 AD3d 730, 731 [2010]). Accordingly, we find no reason to disturb the determination of guilt.

Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

107 A.D.3d 1248, 966 N.Y.S.2d 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-fischer-nyappdiv-2013.

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