Rivera v. Fischer

Appellate Division of the Supreme Court of New York

Rivera v. Fischer

118 A.D.3d 1194, 987 N.Y.S.2d 267

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

DecidedJune 19, 2014

StatusPublished

Cited by6 cases

This text of 118 A.D.3d 1194 (Rivera 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

Rivera v. Fischer, 118 A.D.3d 1194, 987 N.Y.S.2d 267 (N.Y. Ct. App. 2014).

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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 creating a disturbance, violent conduct and engaging in an unauthorized assembly. According to the report, petitioner was part of a group of 15 or more inmates that was about to engage in a fight in the exercise yard. The other inmates in the yard had stopped what they were doing and were watching the group when correction officers intervened before the fight began. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. [1195]*1195On administrative appeal, the charge of violent conduct was dismissed, but the remainder of the determination was upheld with no change in penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, the unusual incident report and the hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Hyatt v Fischer, 110 AD3d 1294, 1295 [2013]; Matter of Cody v Fischer, 84 AD3d 1651, 1651 [2011]). Petitioner’s testimony that he was not involved in the incident and was only walking through the yard on his way to the weightlifting area presented a credibility issue for the Hearing Officer to resolve (see Matter of Brisman v Fischer, 92 AD3d 1060, 1061 [2012], lv denied 20 NY3d 852 [2012]; Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]). Further, the misbehavior report contained sufficient detail to enable petitioner to prepare a defense (see Matter of Curry v Fischer, 113 AD3d 981, 982 [2014]; Matter of Poe v Fischer, 107 AD3d 1251, 1252 [2013]). We have examined petitioner’s remaining claims and find them to be without merit.

Lahtinen, J.P, McCarthy, Rose, Devine and Clark, 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 creating a disturbance, violent conduct and engaging in an unauthorized assembly. According to the report, petitioner was part of a group of 15 or more inmates that was about to engage in a fight in the exercise yard. The other inmates in the yard had stopped what they were doing and were watching the group when correction officers intervened before the fight began. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. [1195]*1195On administrative appeal, the charge of violent conduct was dismissed, but the remainder of the determination was upheld with no change in penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, the unusual incident report and the hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Hyatt v Fischer, 110 AD3d 1294, 1295 [2013]; Matter of Cody v Fischer, 84 AD3d 1651, 1651 [2011]). Petitioner’s testimony that he was not involved in the incident and was only walking through the yard on his way to the weightlifting area presented a credibility issue for the Hearing Officer to resolve (see Matter of Brisman v Fischer, 92 AD3d 1060, 1061 [2012], lv denied 20 NY3d 852 [2012]; Matter of McLaughlin v Fischer, 69 AD3d 1071, 1072 [2010]). Further, the misbehavior report contained sufficient detail to enable petitioner to prepare a defense (see Matter of Curry v Fischer, 113 AD3d 981, 982 [2014]; Matter of Poe v Fischer, 107 AD3d 1251, 1252 [2013]). We have examined petitioner’s remaining claims and find them to be without merit.

Lahtinen, J.P, McCarthy, Rose, Devine and Clark, JJ., concur.

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

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Bluebook (online)

118 A.D.3d 1194, 987 N.Y.S.2d 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-fischer-nyappdiv-2014.

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