Washington v. Fischer

Appellate Division of the Supreme Court of New York

Washington v. Fischer

48 A.D.3d 1232, 851 N.Y.S.2d 815

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

DecidedFebruary 8, 2008

StatusPublished

This text of 48 A.D.3d 1232 (Washington 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

Washington v. Fischer, 48 A.D.3d 1232, 851 N.Y.S.2d 815 (N.Y. Ct. App. 2008).

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Opinion

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered July 24, 2007) to annul a determination of respondent. The determination found after a tier III hearing that petitioner violated an inmate rule.

[1233]*1233It is hereby ordered that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination that he violated inmate rule 105.12 (7 NYCRR 270.2 [B] [6] [iii]), which prohibits, inter alia, an inmate’s possession of unauthorized organizational materials. Contrary to petitioner’s contention, the determination is supported by substantial evidence, i.e., the misbehavior report, and the testimony of both the sergeant who authored the misbehavior report and the correction officer who confiscated the material (see generally Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). The contention of petitioner that the material had been reviewed by the facility that had transferred him and had been found unobjectionable is supported only by his own testimony at the hearing (cf. Matter of Cody v Fischer, 46 AD3d 1371 [2007]; Matter of Morrero v Coombe, 236 AD2d 887 [1997]), and the Hearing Officer was entitled to discredit that testimony (see generally Foster, 76 NY2d at 966). Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.

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Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered July 24, 2007) to annul a determination of respondent. The determination found after a tier III hearing that petitioner violated an inmate rule.

[1233]*1233It is hereby ordered that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination that he violated inmate rule 105.12 (7 NYCRR 270.2 [B] [6] [iii]), which prohibits, inter alia, an inmate’s possession of unauthorized organizational materials. Contrary to petitioner’s contention, the determination is supported by substantial evidence, i.e., the misbehavior report, and the testimony of both the sergeant who authored the misbehavior report and the correction officer who confiscated the material (see generally Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). The contention of petitioner that the material had been reviewed by the facility that had transferred him and had been found unobjectionable is supported only by his own testimony at the hearing (cf. Matter of Cody v Fischer, 46 AD3d 1371 [2007]; Matter of Morrero v Coombe, 236 AD2d 887 [1997]), and the Hearing Officer was entitled to discredit that testimony (see generally Foster, 76 NY2d at 966). Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.

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Bluebook (online)

48 A.D.3d 1232, 851 N.Y.S.2d 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-fischer-nyappdiv-2008.

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