Barrett v. Fischer

Appellate Division of the Supreme Court of New York

Barrett v. Fischer

58 A.D.3d 1031, 870 N.Y.S.2d 808

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

DecidedJanuary 22, 2009

StatusPublished

Cited by2 cases

This text of 58 A.D.3d 1031 (Barrett 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

Barrett v. Fischer, 58 A.D.3d 1031, 870 N.Y.S.2d 808 (N.Y. Ct. App. 2009).

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Opinion

[1032]*1032Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with violating frisk procedures, refusing a direct order, interfering with an employee, assaulting a staff member and engaging in violent conduct. Petitioner was thereafter charged in a second misbehavior report with possessing a document depicting diagrams of portions of the facility. Following a combined tier III disciplinary hearing, petitioner was found guilty of all charges. Upon administrative appeal, that determination was modified by dismissing only the facility document charge set forth in the second misbehavior report. Petitioner then commenced this CPLR article 78 proceeding seeking annulment of the determination.

We confirm. The first misbehavior report, together with testimony adduced at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Triplett v Fischer, 54 AD3d 1075, 1076 [2008]). Petitioner’s denial of the allegations and offering of a retaliation defense created credibility issues for resolution by the Hearing Officer (see Matter of Sloane v McKinney, 48 AD3d 850, 850 [2008]). Regarding petitioner’s assertion that the Hearing Officer was biased, it is neither substantiated by the record nor is there any indication that the determination flowed from any purported bias (see Matter of Sweat v Fischer, 52 AD3d 1142, 1143 [2008]). The remaining claims advanced by petitioner have been examined and found to be unavailing.

Spain, J.P, Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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[1032]*1032Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with violating frisk procedures, refusing a direct order, interfering with an employee, assaulting a staff member and engaging in violent conduct. Petitioner was thereafter charged in a second misbehavior report with possessing a document depicting diagrams of portions of the facility. Following a combined tier III disciplinary hearing, petitioner was found guilty of all charges. Upon administrative appeal, that determination was modified by dismissing only the facility document charge set forth in the second misbehavior report. Petitioner then commenced this CPLR article 78 proceeding seeking annulment of the determination.

We confirm. The first misbehavior report, together with testimony adduced at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Triplett v Fischer, 54 AD3d 1075, 1076 [2008]). Petitioner’s denial of the allegations and offering of a retaliation defense created credibility issues for resolution by the Hearing Officer (see Matter of Sloane v McKinney, 48 AD3d 850, 850 [2008]). Regarding petitioner’s assertion that the Hearing Officer was biased, it is neither substantiated by the record nor is there any indication that the determination flowed from any purported bias (see Matter of Sweat v Fischer, 52 AD3d 1142, 1143 [2008]). The remaining claims advanced by petitioner have been examined and found to be unavailing.

Spain, J.P, Rose, Lahtinen, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

58 A.D.3d 1031, 870 N.Y.S.2d 808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-fischer-nyappdiv-2009.

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