Jones v. Fischer

101 A.D.3d 1197, 955 N.Y.2d 281

Opinion

Initially, we are not persuaded by petitioner’s procedural complaints. The record reflects that the Hearing Officer conducted a fair and impartial hearing and made appropriate evidentiary determinations (see Matter of Dennis v Bezio, 82 AD3d 1398, 1399 [2011]; Matter of Sepe v Goord, 1 AD3d 667, 668 [2003]). The record also reflects that the hearing was conducted within the time frames permitted by appropriate extensions (see Matter of McNeil v Fischer, 95 AD3d 1520, 1521 [2012]; Matter of Martinez v Fischer, 82 AD3d 1380, 1381 [2011]). Furthermore, we are satisfied on this record that petitioner was provided with adequate employee assistance (see Matter of McNeil v Fischer, 95 AD3d at 1521; Matter of Liner v Fischer, 56 AD3d 1088, 1088 [2008], lv denied 12 NY3d 703 [2009]).

Nor are we convinced by petitioner’s arguments concerning the sufficiency of the evidence. The testimony of an employee witness, together with the misbehavior reports and to/from reports, provided substantial evidence supporting a finding of petitioner’s guilt on each charge (see Matter of Abreu v Fischer, 84 AD3d 1597, 1597 [2011]; Matter of Watson v New York State Dept. of Correctional Servs., 82 AD3d 1435, 1435 [2011]). Petitioner waived the testimony of the officers who authored the misbehavior reports and, therefore, may not now argue that their testimony was improperly omitted (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Rizzuto v Coombe, 225 AD2d 961, 962 [1996]). To the extent not specifically addressed herein, petitioner’s remaining arguments have been considered and found to be without merit.

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