Reynoso v. Fischer

Appellate Division of the Supreme Court of New York

Reynoso v. Fischer

73 A.D.3d 1315, 899 N.Y.S.2d 913

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

DecidedMay 13, 2010

StatusPublished

Cited by9 cases

This text of 73 A.D.3d 1315 (Reynoso 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

Reynoso v. Fischer, 73 A.D.3d 1315, 899 N.Y.S.2d 913 (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.

During a gallery frisk, petitioner struck a correction officer in the face with handcuffs, and a misbehavior report was thereafter served charging him with assault on staff, engaging in violent conduct, interference, failing to comply with frisk procedures and using contraband as a weapon. After a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative review and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, unusual incident report, [1316]*1316other documentary evidence and the testimony of the correction officer who was assaulted provide substantial evidence to support the determination (see Matter of Jones v Fischer, 69 AD3d 1065, 1065-1066 [2010]; Matter of Parkinson v Selsky, 49 AD3d 985, 985 [2008]). Petitioner’s contrary claim that the incident was fabricated to cover up an assault by correction officers upon him in retaliation for a grievance filed by petitioner presented a credibility issue for the Hearing Officer to resolve (see Matter of Parkinson v Selsky, 49 AD3d at 985; Matter of Williams v Goord, 308 AD2d 614, 615 [2003]). Nor was petitioner deprived of the right to call witnesses, as the Hearing Officer appropriately determined that some witnesses would not provide relevant testimony and made sufficient inquiry to determine that others had refused to testify (see Matter of Ellison v Fischer, 63 AD3d 1382, 1383 [2009]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]). Petitioner’s remaining contentions have been reviewed and are either unpreserved or without merit.

Cardona, P.J., Mercure, Rose, Stein and McCarthy, 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.

During a gallery frisk, petitioner struck a correction officer in the face with handcuffs, and a misbehavior report was thereafter served charging him with assault on staff, engaging in violent conduct, interference, failing to comply with frisk procedures and using contraband as a weapon. After a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative review and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, unusual incident report, [1316]*1316other documentary evidence and the testimony of the correction officer who was assaulted provide substantial evidence to support the determination (see Matter of Jones v Fischer, 69 AD3d 1065, 1065-1066 [2010]; Matter of Parkinson v Selsky, 49 AD3d 985, 985 [2008]). Petitioner’s contrary claim that the incident was fabricated to cover up an assault by correction officers upon him in retaliation for a grievance filed by petitioner presented a credibility issue for the Hearing Officer to resolve (see Matter of Parkinson v Selsky, 49 AD3d at 985; Matter of Williams v Goord, 308 AD2d 614, 615 [2003]). Nor was petitioner deprived of the right to call witnesses, as the Hearing Officer appropriately determined that some witnesses would not provide relevant testimony and made sufficient inquiry to determine that others had refused to testify (see Matter of Ellison v Fischer, 63 AD3d 1382, 1383 [2009]; Matter of Hill v Selsky, 19 AD3d 64, 66 [2005]). Petitioner’s remaining contentions have been reviewed and are either unpreserved or without merit.

Cardona, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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Bluebook (online)

73 A.D.3d 1315, 899 N.Y.S.2d 913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynoso-v-fischer-nyappdiv-2010.

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