Nelson v. Fischer

Appellate Division of the Supreme Court of New York

Nelson v. Fischer

73 A.D.3d 1365, 900 N.Y.S.2d 692

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

DecidedMay 20, 2010

StatusPublished

Cited by1 cases

This text of 73 A.D.3d 1365 (Nelson 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

Nelson v. Fischer, 73 A.D.3d 1365, 900 N.Y.S.2d 692 (N.Y. Ct. App. 2010).

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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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with conspiring to smuggle and possess drugs, as well as violating facility visitation procedures. After a tier III disciplinary hearing, he was found guilty as charged. His administrative appeal resulted in a modified penalty and, thereafter, he commenced this CPLR article 78 proceeding.

Initially, inasmuch as the misbehavior report was issued in the wake of an ongoing investigation, it was tendered in a timely manner (see 7 NYCRR 251-3.1 [a]; Matter of Decastro v Prack, 62 AD3d 1224, 1225 [2009]; Matter of Schultz v Goord, 301 AD2d 764, 764-765 [2003]). Next, we find that petitioner received adequate employee assistance, as the assistant was apparently asked only to interview witnesses who were identified in confidential documents and later refused to testify, and to obtain documents that were either confidential or nonexistent (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]; Mat[1366]*1366ter of Tusa v Goord, 287 AD2d 907, 908 [2001], appeal dismissed 98 NY2d 646 [2002]). Finally, the misbehavior report and testimony of the investigator who prepared it, as well as confidential testimony and documentary evidence, provide substantial evidence to support the determination of petitioner’s guilt (see Matter of Johnson v Goord, 7 AD3d 863, 863-864 [2004]; Matter of Kayshawn v Selsky, 277 AD2d 611, 611 [2000]). Petitioner’s remaining contentions, to the extent they are properly before us, have been reviewed and found to be without merit.

Cardona, P.J., Spain, Lahtinen, Stein and Garry, 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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with conspiring to smuggle and possess drugs, as well as violating facility visitation procedures. After a tier III disciplinary hearing, he was found guilty as charged. His administrative appeal resulted in a modified penalty and, thereafter, he commenced this CPLR article 78 proceeding.

Initially, inasmuch as the misbehavior report was issued in the wake of an ongoing investigation, it was tendered in a timely manner (see 7 NYCRR 251-3.1 [a]; Matter of Decastro v Prack, 62 AD3d 1224, 1225 [2009]; Matter of Schultz v Goord, 301 AD2d 764, 764-765 [2003]). Next, we find that petitioner received adequate employee assistance, as the assistant was apparently asked only to interview witnesses who were identified in confidential documents and later refused to testify, and to obtain documents that were either confidential or nonexistent (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]; Mat[1366]*1366ter of Tusa v Goord, 287 AD2d 907, 908 [2001], appeal dismissed 98 NY2d 646 [2002]). Finally, the misbehavior report and testimony of the investigator who prepared it, as well as confidential testimony and documentary evidence, provide substantial evidence to support the determination of petitioner’s guilt (see Matter of Johnson v Goord, 7 AD3d 863, 863-864 [2004]; Matter of Kayshawn v Selsky, 277 AD2d 611, 611 [2000]). Petitioner’s remaining contentions, to the extent they are properly before us, have been reviewed and found to be without merit.

Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

73 A.D.3d 1365, 900 N.Y.S.2d 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-fischer-nyappdiv-2010.

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