Wilson v. Fischer

Appellate Division of the Supreme Court of New York

Wilson v. Fischer

58 A.D.3d 997, 871 N.Y.S.2d 462

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

DecidedJanuary 15, 2009

StatusPublished

Cited by4 cases

This text of 58 A.D.3d 997 (Wilson 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

Wilson v. Fischer, 58 A.D.3d 997, 871 N.Y.S.2d 462 (N.Y. Ct. App. 2009).

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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.

During an investigation, confidential sources revealed that petitioner had been soliciting inmates for sexual favors and had threatened at least one inmate with physical violence to coerce [998]*998him to comply with petitioner’s demands. As a result, petitioner was charged in a misbehavior report with making threats, engaging in violent conduct, engaging in lewd conduct and soliciting a sexual act. Following a tier III disciplinary hearing, he was found guilty of all charges, except for engaging in lewd conduct. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Substantial evidence, consisting of the misbehavior report and the confidential testimony considered by the Hearing Officer in camera, supports the determination of guilt (see Matter of Rincon v Selsky, 28 AD3d 565, 565 [2006]; Matter of Reese v Goord, 249 AD2d 639, 639 [1998], lv denied 92 NY2d 808 [1998]). Contrary to petitioner’s claim, the misbehavior report was sufficiently detailed with respect to the time of the occurrences to enable him to prepare an adequate defense (see Matter of Blake v Goord, 35 AD3d 1016, 1017 [2006]; Matter of Toney v Goord, 26 AD3d 613, 614 [2006]; Matter of Jackson v Smith, 13 AD3d 685, 685 [2004], lv denied 4 NY3d 707 [2005]). In this regard, we note that the Hearing Officer also advised petitioner of the date and time that the investigation concluded, which was the same date that the report was prepared. Moreover, absent an indication in the record that petitioner was denied witnesses, there is no merit to his claim that he was improperly denied witness denial forms. Petitioner’s remaining contentions have not been preserved for our review given his failure to raise them at the disciplinary hearing or in his administrative appeal.

Cardona, PJ., Peters, Spain, Kane and Stein, 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.

During an investigation, confidential sources revealed that petitioner had been soliciting inmates for sexual favors and had threatened at least one inmate with physical violence to coerce [998]*998him to comply with petitioner’s demands. As a result, petitioner was charged in a misbehavior report with making threats, engaging in violent conduct, engaging in lewd conduct and soliciting a sexual act. Following a tier III disciplinary hearing, he was found guilty of all charges, except for engaging in lewd conduct. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Substantial evidence, consisting of the misbehavior report and the confidential testimony considered by the Hearing Officer in camera, supports the determination of guilt (see Matter of Rincon v Selsky, 28 AD3d 565, 565 [2006]; Matter of Reese v Goord, 249 AD2d 639, 639 [1998], lv denied 92 NY2d 808 [1998]). Contrary to petitioner’s claim, the misbehavior report was sufficiently detailed with respect to the time of the occurrences to enable him to prepare an adequate defense (see Matter of Blake v Goord, 35 AD3d 1016, 1017 [2006]; Matter of Toney v Goord, 26 AD3d 613, 614 [2006]; Matter of Jackson v Smith, 13 AD3d 685, 685 [2004], lv denied 4 NY3d 707 [2005]). In this regard, we note that the Hearing Officer also advised petitioner of the date and time that the investigation concluded, which was the same date that the report was prepared. Moreover, absent an indication in the record that petitioner was denied witnesses, there is no merit to his claim that he was improperly denied witness denial forms. Petitioner’s remaining contentions have not been preserved for our review given his failure to raise them at the disciplinary hearing or in his administrative appeal.

Cardona, PJ., Peters, Spain, Kane and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

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58 A.D.3d 997, 871 N.Y.S.2d 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-fischer-nyappdiv-2009.

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