Madison v. Fischer

Appellate Division of the Supreme Court of New York

Madison v. Fischer

108 A.D.3d 959, 968 N.Y.S.2d 748

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

DecidedJuly 18, 2013

StatusPublished

This text of 108 A.D.3d 959 (Madison 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

Madison v. Fischer, 108 A.D.3d 959, 968 N.Y.S.2d 748 (N.Y. Ct. App. 2013).

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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 a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with possession of gang materials after a frisk of his cell disclosed four gang-related pictures and a letter. Following a tier III disciplinary hearing, petitioner was found guilty of the [960]*960charge. That determination was upheld on petitioner’s administrative appeal, prompting the commencement of this CPLR article 78 proceeding.

We confirm. Contrary to petitioner’s argument, the misbehavior report and the testimony of a sergeant trained in recognizing gang-related material constitute substantial evidence supporting the determination (see Matter of Smith v Fischer, 100 AD3d 1314, 1314 [2012]; Matter of Gittens v Fischer, 100 AD3d 1121, 1121 [2012]). Additionally, petitioner’s assertion that the confiscated items were not gang-related and the sergeant’s interpretation of the meanings was mistaken presented a credibility issue to be resolved by the Hearing Officer (see Matter of Rodriguez v Fischer, 96 AD3d 1333, 1333 [2012]). Moreover, even accepting petitioner’s claim that the items had previously been searched and also reviewed by the mail room without incident, this would not alter the fact that “the material is nonetheless prohibited by the prison disciplinary rule” (Matter of Smith v Fischer, 100 AD3d at 1314).

Finally, petitioner’s remaining contentions are not properly before us inasmuch as they were not raised in the petition (see Matter of Pigmentel v Selsky, 19 AD3d 816, 817 [2005]; Matter of Reid v Goord, 14 AD3d 950, 951 [2005]).

Rose, J.P., Lahtinen, Stein 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 a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with possession of gang materials after a frisk of his cell disclosed four gang-related pictures and a letter. Following a tier III disciplinary hearing, petitioner was found guilty of the [960]*960charge. That determination was upheld on petitioner’s administrative appeal, prompting the commencement of this CPLR article 78 proceeding.

We confirm. Contrary to petitioner’s argument, the misbehavior report and the testimony of a sergeant trained in recognizing gang-related material constitute substantial evidence supporting the determination (see Matter of Smith v Fischer, 100 AD3d 1314, 1314 [2012]; Matter of Gittens v Fischer, 100 AD3d 1121, 1121 [2012]). Additionally, petitioner’s assertion that the confiscated items were not gang-related and the sergeant’s interpretation of the meanings was mistaken presented a credibility issue to be resolved by the Hearing Officer (see Matter of Rodriguez v Fischer, 96 AD3d 1333, 1333 [2012]). Moreover, even accepting petitioner’s claim that the items had previously been searched and also reviewed by the mail room without incident, this would not alter the fact that “the material is nonetheless prohibited by the prison disciplinary rule” (Matter of Smith v Fischer, 100 AD3d at 1314).

Finally, petitioner’s remaining contentions are not properly before us inasmuch as they were not raised in the petition (see Matter of Pigmentel v Selsky, 19 AD3d 816, 817 [2005]; Matter of Reid v Goord, 14 AD3d 950, 951 [2005]).

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

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Bluebook (online)

108 A.D.3d 959, 968 N.Y.S.2d 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madison-v-fischer-nyappdiv-2013.

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