Gomez v. Fischer

Appellate Division of the Supreme Court of New York

Gomez v. Fischer

70 A.D.3d 1076, 895 N.Y.S.2d 224

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

DecidedFebruary 4, 2010

StatusPublished

Cited by5 cases

This text of 70 A.D.3d 1076 (Gomez 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

Gomez v. Fischer, 70 A.D.3d 1076, 895 N.Y.S.2d 224 (N.Y. Ct. App. 2010).

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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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner’s cell, a correction officer found legal documents belonging to 35 other inmates as well as other papers of a legal nature. As a result, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange of personally owned property, providing legal assistance without authorization, possessing contraband and smuggling. Following a tier III disciplinary hearing, he was found guilty of possessing contraband and smuggling. The determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with petitioner’s testimony in which he admitted to possessing legal materials belonging to other inmates as well as to copying legal decisions from the law library and taking them back to his cell, provide substantial evidence supporting the determination of guilt (see Matter of Frejomil v LaClair, 46 AD3d 1061, 1061 [2007]; Matter of Holmes v Brown, 43 AD3d 1234, 1235 [2007], lv denied 9 NY3d 815 [2007]). Contrary to petitioner’s contention, the misbehavior report was sufficiently detailed to give petitioner notice of the charges in order to enable him to prepare a defense (see Matter of Arnold v Fischer, 60 AD3d 1177, 1177 [2009]; Matter of Abdul-Khaliq v Goord, 34 AD3d 872, 872 [2006]). Furthermore, the record does not reveal that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Linares v Fischer, 59 AD3d 761 [2009], lv denied 12 NY3d 709 [2009]).

Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

During a search of petitioner’s cell, a correction officer found legal documents belonging to 35 other inmates as well as other papers of a legal nature. As a result, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange of personally owned property, providing legal assistance without authorization, possessing contraband and smuggling. Following a tier III disciplinary hearing, he was found guilty of possessing contraband and smuggling. The determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with petitioner’s testimony in which he admitted to possessing legal materials belonging to other inmates as well as to copying legal decisions from the law library and taking them back to his cell, provide substantial evidence supporting the determination of guilt (see Matter of Frejomil v LaClair, 46 AD3d 1061, 1061 [2007]; Matter of Holmes v Brown, 43 AD3d 1234, 1235 [2007], lv denied 9 NY3d 815 [2007]). Contrary to petitioner’s contention, the misbehavior report was sufficiently detailed to give petitioner notice of the charges in order to enable him to prepare a defense (see Matter of Arnold v Fischer, 60 AD3d 1177, 1177 [2009]; Matter of Abdul-Khaliq v Goord, 34 AD3d 872, 872 [2006]). Furthermore, the record does not reveal that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Linares v Fischer, 59 AD3d 761 [2009], lv denied 12 NY3d 709 [2009]).

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

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Bluebook (online)

70 A.D.3d 1076, 895 N.Y.S.2d 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gomez-v-fischer-nyappdiv-2010.

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