Matter of Rodriquez v. Fischer

Appellate Division of the Supreme Court of New York

Matter of Rodriquez v. Fischer

138 A.D.3d 1328, 28 N.Y.S.3d 636

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

DecidedApril 21, 2016

Docket521564

StatusPublished

Cited by3 cases

This text of 138 A.D.3d 1328 (Matter of Rodriquez 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 Rodriquez v. Fischer, 138 A.D.3d 1328, 28 N.Y.S.3d 636 (N.Y. Ct. App. 2016).

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Opinion

*1329 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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was ordered to submit a urine specimen for testing and it twice tested positive for the presence of K2-2, synthetic marihuana. As a result, he was charged in a misbehavior report with using an intoxicant. Following a tier III disciplinary hearing at which he pleaded guilty to the charge, he was found guilty as charged and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Initially, while petitioner challenges the sufficiency of the evidence supporting the charge of which he was found guilty, inasmuch as he pleaded guilty to the charge, he is precluded from raising this argument (see Matter of Abrahams v Annucci, 134 AD3d 1368, 1369 [2015]; Matter of Kim v Annucci, 128 AD3d 1196, 1197 [2015]). To the extent that petitioner argues that he was denied the right to call witnesses at the hearing, the record reflects that he did not request any witnesses on his witness request form and, at the hearing, he unequivocally stated that he would not be calling any witnesses and declined when given the opportunity to do so (see Matter of Merritt v Fischer, 108 AD3d 993, 994 [2013]; Matter of Green v Fischer, 77 AD3d 1011, 1012 [2010], lv denied 16 NY3d 710 [2011], cert denied 565 US—, 132 S Ct 1047 [2012]). Thus, we find that petitioner waived any objection related to his right to call witnesses (see Matter of Olibencia v New York State Dept. of Corr. & Community Supervision, 131 AD3d 1318, 1318 [2015]). Petitioner’s remaining claims were not preserved for our review and may not be considered (see Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; Matter of Barnes v Venettozzi, 135 AD3d 1250, 1250 [2016]).

Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.

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

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*1329 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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner was ordered to submit a urine specimen for testing and it twice tested positive for the presence of K2-2, synthetic marihuana. As a result, he was charged in a misbehavior report with using an intoxicant. Following a tier III disciplinary hearing at which he pleaded guilty to the charge, he was found guilty as charged and the determination was later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Initially, while petitioner challenges the sufficiency of the evidence supporting the charge of which he was found guilty, inasmuch as he pleaded guilty to the charge, he is precluded from raising this argument (see Matter of Abrahams v Annucci, 134 AD3d 1368, 1369 [2015]; Matter of Kim v Annucci, 128 AD3d 1196, 1197 [2015]). To the extent that petitioner argues that he was denied the right to call witnesses at the hearing, the record reflects that he did not request any witnesses on his witness request form and, at the hearing, he unequivocally stated that he would not be calling any witnesses and declined when given the opportunity to do so (see Matter of Merritt v Fischer, 108 AD3d 993, 994 [2013]; Matter of Green v Fischer, 77 AD3d 1011, 1012 [2010], lv denied 16 NY3d 710 [2011], cert denied 565 US—, 132 S Ct 1047 [2012]). Thus, we find that petitioner waived any objection related to his right to call witnesses (see Matter of Olibencia v New York State Dept. of Corr. & Community Supervision, 131 AD3d 1318, 1318 [2015]). Petitioner’s remaining claims were not preserved for our review and may not be considered (see Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]; Matter of Barnes v Venettozzi, 135 AD3d 1250, 1250 [2016]).

Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.

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

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138 A.D.3d 1328, 28 N.Y.S.3d 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-rodriquez-v-fischer-nyappdiv-2016.

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