Rossi v. Fischer

Appellate Division of the Supreme Court of New York

Rossi v. Fischer

118 A.D.3d 1213, 987 N.Y.S.2d 273

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

DecidedJune 19, 2014

StatusPublished

Cited by7 cases

This text of 118 A.D.3d 1213 (Rossi 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

Rossi v. Fischer, 118 A.D.3d 1213, 987 N.Y.S.2d 273 (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 Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation, correction officials discovered that petitioner was involved in a scheme to introduce a cell phone and drugs into the correctional facility. As a result, he was charged in a misbehavior report with conspiring to possess a controlled substance, possession of contraband and smuggling. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officials involved in the investigation and the confidential testimony considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Carrero v Fischer, 106 AD3d 1299, 1299 [2013]; Matter of Brown v Fischer, 98 AD3d 778, 779 [2012]). Contrary to petitioner’s claim, the Hearing Of[1214]*1214fleer conducted an independent assessment of the credibility of the confidential informant by questioning the correction officials involved in the investigation (see Matter of White v Prack, 94 AD3d 1299 [2012]; Matter of Sime v Goord, 30 AD3d 887, 889 [2006], lv denied 7 NY3d 717 [2006]). Notably, petitioner was not entitled to question the confidential informant (see Matter of Barton v New York State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]; Matter of Stallone v Fischer, 65 AD3d 1410, 1410 [2009], lv denied 13 NY3d 712 [2009]). Therefore, we find no reason to disturb the determination of guilt.

Peters, EJ., Rose, Egan Jr., Lynch 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 Franklin County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation, correction officials discovered that petitioner was involved in a scheme to introduce a cell phone and drugs into the correctional facility. As a result, he was charged in a misbehavior report with conspiring to possess a controlled substance, possession of contraband and smuggling. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officials involved in the investigation and the confidential testimony considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Carrero v Fischer, 106 AD3d 1299, 1299 [2013]; Matter of Brown v Fischer, 98 AD3d 778, 779 [2012]). Contrary to petitioner’s claim, the Hearing Of[1214]*1214fleer conducted an independent assessment of the credibility of the confidential informant by questioning the correction officials involved in the investigation (see Matter of White v Prack, 94 AD3d 1299 [2012]; Matter of Sime v Goord, 30 AD3d 887, 889 [2006], lv denied 7 NY3d 717 [2006]). Notably, petitioner was not entitled to question the confidential informant (see Matter of Barton v New York State Dept. of Correctional Servs., 81 AD3d 1029, 1030 [2011]; Matter of Stallone v Fischer, 65 AD3d 1410, 1410 [2009], lv denied 13 NY3d 712 [2009]). Therefore, we find no reason to disturb the determination of guilt.

Peters, EJ., Rose, Egan Jr., Lynch 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 1213, 987 N.Y.S.2d 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rossi-v-fischer-nyappdiv-2014.

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