in Matter of Marc Douglas v. Fischer

Appellate Division of the Supreme Court of New York

in Matter of Marc Douglas v. Fischer

115 A.D.3d 1103, 981 N.Y.S.2d 887

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

DecidedMarch 20, 2014

StatusPublished

This text of 115 A.D.3d 1103 (in Matter of Marc Douglas 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

in Matter of Marc Douglas v. Fischer, 115 A.D.3d 1103, 981 N.Y.S.2d 887 (N.Y. Ct. App. 2014).

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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.

Petitioner commenced this CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of disobeying a direct order and failing to comply with frisk procedures. The misbehavior report relates that petitioner was observed with a small, white, balloon-type object in his mouth during a frisk and, when ordered to spit it out, petitioner swallowed it. Although no physical evidence was found after petitioner was placed on a two-day contraband watch, the misbehavior report and supporting testimony at the hearing nevertheless provide substantial evidence to support the determination of guilt (see Matter of Kimble v Fischer, 56 AD3d 879, 880 [2008]; Matter of Gee v Goord, 21 AD3d 636, 637 [2005]). Petitioner’s remaining contentions, including that he was denied the right to call a witness and improperly denied documentary evidence, have been reviewed and are either unpreserved for this Court’s review or without merit.

Lahtinen, J.P, McCarthy, Rose 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a disciplinary determination finding him guilty of disobeying a direct order and failing to comply with frisk procedures. The misbehavior report relates that petitioner was observed with a small, white, balloon-type object in his mouth during a frisk and, when ordered to spit it out, petitioner swallowed it. Although no physical evidence was found after petitioner was placed on a two-day contraband watch, the misbehavior report and supporting testimony at the hearing nevertheless provide substantial evidence to support the determination of guilt (see Matter of Kimble v Fischer, 56 AD3d 879, 880 [2008]; Matter of Gee v Goord, 21 AD3d 636, 637 [2005]). Petitioner’s remaining contentions, including that he was denied the right to call a witness and improperly denied documentary evidence, have been reviewed and are either unpreserved for this Court’s review or without merit.

Lahtinen, J.P, McCarthy, Rose and Egan Jr., JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

115 A.D.3d 1103, 981 N.Y.S.2d 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-matter-of-marc-douglas-v-fischer-nyappdiv-2014.

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