Matter of Douglas v. Fischer

Appellate Division of the Supreme Court of New York

Matter of Douglas v. Fischer

126 A.D.3d 1244, 3 N.Y.S.3d 654

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

DecidedMarch 26, 2015

Docket516905

StatusPublished

Cited by11 cases

This text of 126 A.D.3d 1244 (Matter of 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.

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Matter of Douglas v. Fischer, 126 A.D.3d 1244, 3 N.Y.S.3d 654 (N.Y. Ct. App. 2015).

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Opinion

McCarthy, J.P.

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 was suspected of possessing a weapon and was ordered to submit to a pat frisk. During the course of the frisk, *1245 he kicked the correction officer who was conducting it and attempted to flee the area. In the course of doing so, he ran into another officer and knocked him to the floor. A physical altercation then ensued between petitioner and a number of officers during which petitioner began yelling obscenities. He was ultimately subdued and removed from the area. As a result of this incident, petitioner was charged in a misbehavior report with assaulting staff, engaging in violent conduct, creating a disturbance and failing to comply with frisk procedures. He was found guilty of the charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, related documentation and testimony of correction officers involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1240 [2014], lv denied 24 NY3d 906 [2014]; Matter of Walker v Fischer, 108 AD3d 999, 1000 [2013]). Any inconsistencies in the testimony and petitioner’s protestations of innocence presented credibility issues for the Hearing Officer to resolve (see Matter of Rouse v Fischer, 94 AD3d 1310, 1310 [2012]; Matter of Crenshaw v Fischer, 89 AD3d 1343, 1344 [2011]). Furthermore, we reject petitioner’s assertion that the Hearing Officer improperly relied upon confidential information. Although confidential information led to the pat frisk, it did not provide a basis for the determination of petitioner’s guilt (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Mullady v Bezio, 87 AD3d 765, 766 [2011]). We have considered petitioner’s remaining contentions and find that they are either unpreserved for our review or are lacking in merit.

Egan Jr., Devine and Clark, JJ., concur.

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

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McCarthy, J.P.

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 was suspected of possessing a weapon and was ordered to submit to a pat frisk. During the course of the frisk, *1245 he kicked the correction officer who was conducting it and attempted to flee the area. In the course of doing so, he ran into another officer and knocked him to the floor. A physical altercation then ensued between petitioner and a number of officers during which petitioner began yelling obscenities. He was ultimately subdued and removed from the area. As a result of this incident, petitioner was charged in a misbehavior report with assaulting staff, engaging in violent conduct, creating a disturbance and failing to comply with frisk procedures. He was found guilty of the charges following a tier III disciplinary hearing and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, related documentation and testimony of correction officers involved in the incident provide substantial evidence supporting the determination of guilt (see Matter of Alsaifullah v Fischer, 118 AD3d 1239, 1240 [2014], lv denied 24 NY3d 906 [2014]; Matter of Walker v Fischer, 108 AD3d 999, 1000 [2013]). Any inconsistencies in the testimony and petitioner’s protestations of innocence presented credibility issues for the Hearing Officer to resolve (see Matter of Rouse v Fischer, 94 AD3d 1310, 1310 [2012]; Matter of Crenshaw v Fischer, 89 AD3d 1343, 1344 [2011]). Furthermore, we reject petitioner’s assertion that the Hearing Officer improperly relied upon confidential information. Although confidential information led to the pat frisk, it did not provide a basis for the determination of petitioner’s guilt (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Mullady v Bezio, 87 AD3d 765, 766 [2011]). We have considered petitioner’s remaining contentions and find that they are either unpreserved for our review or are lacking in merit.

Egan Jr., Devine and Clark, JJ., concur.

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

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126 A.D.3d 1244, 3 N.Y.S.3d 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-douglas-v-fischer-nyappdiv-2015.

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