Rouse v. Fischer

Appellate Division of the Supreme Court of New York

Rouse v. Fischer

94 A.D.3d 1310, 942 N.Y.S.2d 384

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

DecidedApril 19, 2012

StatusPublished

Cited by9 cases

This text of 94 A.D.3d 1310 (Rouse 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

Rouse v. Fischer, 94 A.D.3d 1310, 942 N.Y.S.2d 384 (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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with fighting, assaulting an inmate, possession of a weapon and violent conduct on the basis of information received from a confidential source implicating petitioner as the individual who cut another inmate with a “razor type weapon.” Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Upon petitioner’s administrative appeal, the fighting charge was dismissed, with all other charges affirmed, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report and confidential information reviewed by the Hearing Officer provide substantial evidence to support the determination of guilt (see Matter of Gomez v Fischer, 89 AD3d 1341, 1341 [2011]; Matter of Love v Prack, 89 AD3d 1307, 1308 [2011]). Significantly, “[inconsistencies in the testimony and petitioner’s protestations of innocence raised questions of credibility that were within the province of the Hearing Officer to resolve” (Matter of Crenshaw v Fischer, 89 AD3d 1343, 1344 [2011]; see Williams v Fischer, 89 AD3d 1333, 1333 [2011]).

The remaining arguments, including petitioner’s assertion of hearing officer bias, have been examined and found to be unpersuasive. Inasmuch as the record confirms that petitioner refused to attend the latter half of the disciplinary hearing and was warned of the consequences thereof, his claim that he was denied the right to attend or participate is lacking in merit (see Matter of Abreu v Bezio, 84 AD3d 1596,1596 [2011], lv dismissed 17 NY3d 781 [2011], appeal dismissed 17 NY3d 915 [2011]).

Mercure, J.P, Lahtinen, Kavanagh, 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 certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with fighting, assaulting an inmate, possession of a weapon and violent conduct on the basis of information received from a confidential source implicating petitioner as the individual who cut another inmate with a “razor type weapon.” Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Upon petitioner’s administrative appeal, the fighting charge was dismissed, with all other charges affirmed, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report and confidential information reviewed by the Hearing Officer provide substantial evidence to support the determination of guilt (see Matter of Gomez v Fischer, 89 AD3d 1341, 1341 [2011]; Matter of Love v Prack, 89 AD3d 1307, 1308 [2011]). Significantly, “[inconsistencies in the testimony and petitioner’s protestations of innocence raised questions of credibility that were within the province of the Hearing Officer to resolve” (Matter of Crenshaw v Fischer, 89 AD3d 1343, 1344 [2011]; see Williams v Fischer, 89 AD3d 1333, 1333 [2011]).

The remaining arguments, including petitioner’s assertion of hearing officer bias, have been examined and found to be unpersuasive. Inasmuch as the record confirms that petitioner refused to attend the latter half of the disciplinary hearing and was warned of the consequences thereof, his claim that he was denied the right to attend or participate is lacking in merit (see Matter of Abreu v Bezio, 84 AD3d 1596,1596 [2011], lv dismissed 17 NY3d 781 [2011], appeal dismissed 17 NY3d 915 [2011]).

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

Cite This Page — Counsel Stack

Bluebook (online)

94 A.D.3d 1310, 942 N.Y.S.2d 384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rouse-v-fischer-nyappdiv-2012.

Opinion

Related

Cite This Page — Counsel Stack