Rosario v. Fischer

Appellate Division of the Supreme Court of New York

Rosario v. Fischer

95 A.D.3d 1528, 943 N.Y.S.2d 919

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

DecidedMay 17, 2012

StatusPublished

This text of 95 A.D.3d 1528 (Rosario 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

Rosario v. Fischer, 95 A.D.3d 1528, 943 N.Y.S.2d 919 (N.Y. Ct. App. 2012).

Pincite

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.

[1529]*1529After returning from court, petitioner refused a correction officer’s directive to report to a program. Consequently, he was charged in a misbehavior report with refusing a direct order and failing to accept a program assignment. He was found guilty of the charges following a tier III disciplinary hearing. On administrative appeal, the charge of failing to accept a program assignment was dismissed, but the remainder of the determination was upheld. This CPLR article 78 proceeding ensued.

We confirm. Inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the sufficiency of the evidence supporting the determination of guilt (see Matter of Lineberger v Bezio, 89 AD3d 1293, 1294 [2011], appeal dismissed 19 NY3d 847 [2012]; Matter of Cruz v Walsh, 87 AD3d 1234, 1234 [2011]). Petitioner’s further claim that the Hearing Officer did not provide him with an adequate statement of evidence relied upon has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Santos v Evans, 81 AD3d 1059, 1060 [2011]).

Peters, P.J., Rose, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Free access — add to your briefcase to read the full text and ask questions with AI

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.

[1529]*1529After returning from court, petitioner refused a correction officer’s directive to report to a program. Consequently, he was charged in a misbehavior report with refusing a direct order and failing to accept a program assignment. He was found guilty of the charges following a tier III disciplinary hearing. On administrative appeal, the charge of failing to accept a program assignment was dismissed, but the remainder of the determination was upheld. This CPLR article 78 proceeding ensued.

We confirm. Inasmuch as petitioner pleaded guilty to refusing a direct order, he is precluded from challenging the sufficiency of the evidence supporting the determination of guilt (see Matter of Lineberger v Bezio, 89 AD3d 1293, 1294 [2011], appeal dismissed 19 NY3d 847 [2012]; Matter of Cruz v Walsh, 87 AD3d 1234, 1234 [2011]). Petitioner’s further claim that the Hearing Officer did not provide him with an adequate statement of evidence relied upon has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Santos v Evans, 81 AD3d 1059, 1060 [2011]).

Peters, P.J., Rose, Malone Jr., McCarthy and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

95 A.D.3d 1528, 943 N.Y.S.2d 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosario-v-fischer-nyappdiv-2012.

Opinion

Related

Cite This Page — Counsel Stack