In the Matter of Fuentes v. Fischer
| Decision Date | 13 November 2008 |
| Docket Number | 504379 |
| Citation | 2008 NY Slip Op 08578,868 N.Y.S.2d 326,56 A.D.3d 919 |
| Parties | In the Matter of JESUS FUENTES, Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
A search of petitioner's prison cell resulted in the discovery of a sharpened aluminum can lid hidden in his locker and a sharpened 2½-inch piece of metal hidden in a container of dental floss. Petitioner was charged in a misbehavior report with possession of a weapon and was found guilty following a tier III disciplinary hearing. Upon administrative review, that determination was affirmed prompting this CPLR article 78 proceeding.
We confirm. The determination of guilt is supported by substantial evidence including the misbehavior report and hearing testimony (see Matter of Kearney v Fischer, 51 AD3d 1185, 1185 [2008]). Petitioner's contention that the can lid was used to slice vegetables and the other metal object was used to repair his eyeglasses and wristwatch did not preclude a finding that the objects were dangerous weapons, as the prohibition against possessing the altered items is not limited by an inmate's intent (see Matter of Tinnirello v Selsky, 51 AD3d 1238, 1239 [2008]). Moreover, petitioner's claim that the disciplinary rule prohibiting the possession of weapons (see 7 NYCRR 270.2 [B] [14] [i]) is unconstitutionally vague is without merit (see Matter of Tinnirello v Selsky, 51 AD3d at 1239).
With regard to petitioner's claim that he was denied adequate employee assistance, the record reflects that any defects in the provided assistance were cured by the Hearing Officer at the disciplinary hearing (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]). Despite petitioner's contention to the contrary, he was not entitled to the right to counsel at his disciplinary hearing (see Matter of Shaffer v Hoke, 174 AD2d 787, 788 [1991]) nor were the Miranda requirements applicable to the hearing and petitioner was informed that any statements he made could not be used against him in a criminal proceeding (see Matter of Arner v Warne, 54 AD2d 903, 904 [1976]). Finally, as peti...
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In the Matter of Jose Quezada v. Fischer
... ... This CPLR article 78 proceeding ensued. We confirm. The misbehavior report, together with the testimony of the correction officers involved in the search, provide substantial evidence supporting the determination of guilt ( see Matter of Fuentes v. Fischer, 56 A.D.3d 919, 920, 868 N.Y.S.2d 326 [2008]; Matter of Fews v. Goord, 54 A.D.3d 1073, 1074, 863 N.Y.S.2d 836 [2008] ). Although petitioner maintained that the weapon had been planted in his cell in retaliation for past grievances and a lawsuit filed by him against certain officers, his ... ...
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Walker v. Fischer
...107 A.D.3d 1273967 N.Y.S.2d 2552013 N.Y. Slip Op. 04664In the Matter of Tyrone WALKER, Petitioner,v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.Supreme Court, Appellate Division, ... that it was a dangerous weapon, as the prohibition of the possession of such an item is not limited by the inmate's intent ( see Matter of Fuentes v. Fischer, 56 A.D.3d 919, 920, 868 N.Y.S.2d 326 [2008];Matter of Tinnirello v. Selsky, 51 A.D.3d 1238, 1239, 858 N.Y.S.2d 806 [2008] ). Finally, ... ...
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...107 A.D.3d 1267967 N.Y.S.2d 2462013 N.Y. Slip Op. 04659In the Matter of Patrick PROCTOR, Petitioner,v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.Supreme Court, Appellate ... Officer's in-person observation of the item that was found in his cell, to support the determination that it was a weapon ( see Matter of Fuentes v. Fischer, 56 A.D.3d 919, 920, 868 N.Y.S.2d 326 [2008];Matter of Tinnirello v. Selsky, 51 A.D.3d 1238, 1239, 858 N.Y.S.2d 806 [2008] ). Neither ... ...
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Jeckel v. N.Y. State Dep't of Corr.
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