Matter of Hayes v. Fischer

Appellate Division of the Supreme Court of New York

Matter of Hayes v. Fischer

123 A.D.3d 1266, 996 N.Y.S.2d 553

Appellate Division of the Supreme Court of the State of New York·Decided December 11, 2014·No. 518438·Published·Cited by 2 cases

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.

*1267 Petitioner commenced this CPLR article 78 proceeding challenging an administrative determination finding him guilty of violating, as is relevant herein, the prison disciplinary rules that prohibit possession of alcohol, possession of an altered item, smuggling and property damage. * The charges stem from the discovery of a 54-quart bin of fermenting liquid containing fruit and socks filled with bread. A rubber hose — later identified as missing from the mess hall — was also in the bin that, apparently, was being used as a syphon. Numerous empty clear plastic bottles were also discovered following a search of petitioner’s cell.

The misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Sorrentino v Fischer, 78 AD3d 1354, 1355 [2010]; Matter of Butler v Fischer, 74 AD3d 1651, 1652 [2010]). To the extent that petitioner claims that he was improperly denied the right to call a witness, the record establishes that the Hearing Officer appropriately determined that the requested testimony was irrelevant (see Matter of Credell v Fischer, 120 AD3d 857, 857-858 [2014]; Matter of Reynoso v Fischer, 73 AD3d 1315, 1316 [2010]). Petitioner’s remaining contentions, to the extent they are discernable, have been reviewed and found to be without merit.

McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.

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

*

Although petitioner was also found guilty of refusing a direct order and a urinalysis testing violation as charged in a separate misbehavior report, he has abandoned any challenge thereto by not advancing any argument regarding the same in his brief.

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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.

*1267 Petitioner commenced this CPLR article 78 proceeding challenging an administrative determination finding him guilty of violating, as is relevant herein, the prison disciplinary rules that prohibit possession of alcohol, possession of an altered item, smuggling and property damage. * The charges stem from the discovery of a 54-quart bin of fermenting liquid containing fruit and socks filled with bread. A rubber hose — later identified as missing from the mess hall — was also in the bin that, apparently, was being used as a syphon. Numerous empty clear plastic bottles were also discovered following a search of petitioner’s cell.

The misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Sorrentino v Fischer, 78 AD3d 1354, 1355 [2010]; Matter of Butler v Fischer, 74 AD3d 1651, 1652 [2010]). To the extent that petitioner claims that he was improperly denied the right to call a witness, the record establishes that the Hearing Officer appropriately determined that the requested testimony was irrelevant (see Matter of Credell v Fischer, 120 AD3d 857, 857-858 [2014]; Matter of Reynoso v Fischer, 73 AD3d 1315, 1316 [2010]). Petitioner’s remaining contentions, to the extent they are discernable, have been reviewed and found to be without merit.

McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.

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

*

Although petitioner was also found guilty of refusing a direct order and a urinalysis testing violation as charged in a separate misbehavior report, he has abandoned any challenge thereto by not advancing any argument regarding the same in his brief.

Matter of Hayes v. Fischer, 123 A.D.3d 1266, 996 N.Y.S.2d 553 (N.Y. Ct. App. 2014).

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