Lynch v. Fischer

Appellate Division of the Supreme Court of New York

Lynch v. Fischer

65 A.D.3d 767, 883 N.Y.S.2d 743

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

DecidedAugust 13, 2009

StatusPublished

This text of 65 A.D.3d 767 (Lynch 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

Lynch v. Fischer, 65 A.D.3d 767, 883 N.Y.S.2d 743 (N.Y. Ct. App. 2009).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to this [768]*768Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with extortion and threatening another inmate. He was found guilty of both charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, testimony adduced at the hearing and confidential information, including a letter written by petitioner that acknowledges a physical threat to the other inmate, provide substantial evidence of petitioner’s guilt (see Matter of Odom v Selsky, 58 AD3d 1060, 1060-1061 [2009]). Contrary to petitioner’s assertion, he demonstrated no prejudice from the fact that his copy of the misbehavior report was not signed by the reporting officer. Indeed, a signed copy was presented at the hearing and the author of the report was questioned by petitioner (see Matter of Reyes v Selsky, 32 AD3d 1118, 1119 [2006]). Petitioner’s remaining contentions, including that the Hearing Officer was unsympathetic to his medical condition, have been reviewed and are determined to be without merit.

Peters, J.P, Spain, Kane, 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 [768]*768Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with extortion and threatening another inmate. He was found guilty of both charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, testimony adduced at the hearing and confidential information, including a letter written by petitioner that acknowledges a physical threat to the other inmate, provide substantial evidence of petitioner’s guilt (see Matter of Odom v Selsky, 58 AD3d 1060, 1060-1061 [2009]). Contrary to petitioner’s assertion, he demonstrated no prejudice from the fact that his copy of the misbehavior report was not signed by the reporting officer. Indeed, a signed copy was presented at the hearing and the author of the report was questioned by petitioner (see Matter of Reyes v Selsky, 32 AD3d 1118, 1119 [2006]). Petitioner’s remaining contentions, including that the Hearing Officer was unsympathetic to his medical condition, have been reviewed and are determined to be without merit.

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

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Bluebook (online)

65 A.D.3d 767, 883 N.Y.S.2d 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-fischer-nyappdiv-2009.

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