Otero v. Fischer

Appellate Division of the Supreme Court of New York

Otero v. Fischer

54 A.D.3d 1082, 863 N.Y.S.2d 833

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

DecidedSeptember 11, 2008

StatusPublished

Cited by3 cases

This text of 54 A.D.3d 1082 (Otero 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

Otero v. Fischer, 54 A.D.3d 1082, 863 N.Y.S.2d 833 (N.Y. Ct. App. 2008).

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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.

Following a tier III disciplinary hearing, petitioner was found guilty of assaulting two other inmates. Upon administrative appeal, that determination was affirmed with a modified penalty. This CPLR article 78 proceeding by petitioner ensued.

We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report, photographs depicting blood and injuries on petitioner’s hands and testimony adduced at the hearing, including confidential testimony considered by the Hearing Officer in camera (see Matter of Ubaldo v Leclaire, 46 AD3d 975 [2007]). Regarding the confidential information, the Hearing Officer was able to independently assess its reliability through his questioning of the counselor who obtained the information from two confidential informants (see Matter of Witkowski v Goord, 45 AD3d 1068, 1069 [2007]). Petitioner’s remaining contentions, including his challenges to the adequacy of the misbehavior report, have been considered and found to be unavailing.

Mercure, J.P., Peters, Rose, Lahtinen and Kavanagh, 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.

Following a tier III disciplinary hearing, petitioner was found guilty of assaulting two other inmates. Upon administrative appeal, that determination was affirmed with a modified penalty. This CPLR article 78 proceeding by petitioner ensued.

We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report, photographs depicting blood and injuries on petitioner’s hands and testimony adduced at the hearing, including confidential testimony considered by the Hearing Officer in camera (see Matter of Ubaldo v Leclaire, 46 AD3d 975 [2007]). Regarding the confidential information, the Hearing Officer was able to independently assess its reliability through his questioning of the counselor who obtained the information from two confidential informants (see Matter of Witkowski v Goord, 45 AD3d 1068, 1069 [2007]). Petitioner’s remaining contentions, including his challenges to the adequacy of the misbehavior report, have been considered and found to be unavailing.

Mercure, J.P., Peters, Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

54 A.D.3d 1082, 863 N.Y.S.2d 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otero-v-fischer-nyappdiv-2008.

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