Jones v. Fischer

• Decision Date: 06 December 2012
• Citation: 2012 N.Y. Slip Op. 08375,955 N.Y.S.2d 281,101 A.D.3d 1197
• Parties: In the Matter of Terrence JONES, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1197

955 N.Y.S.2d 281

2012 N.Y. Slip Op. 08375

In the Matter of Terrence JONES, Petitioner,

v.Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 6, 2012.

Terrence Jones, Romulus, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, KAVANAGH, McCARTHY and GARRY, JJ.

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 respondentwhich found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was issued two misbehavior reports on the same day arising out of related incidents charging him with violating prison disciplinary rules regarding disobeying a direct order, harassment, disturbance, threats and interference. Following a combined tier III disciplinary hearing, the Hearing Officer found petitioner guilty of all charges. The determination was upheld on administrative appeal. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 challenging the determination.

Initially, we are not persuaded by petitioner's procedural complaints. The record reflects that the Hearing Officer conducted a fair and impartial hearing and made appropriate evidentiary determinations ( see Matter of Dennis v. Bezio, 82 A.D.3d 1398, 1399, 918 N.Y.S.2d 666 [2011];Matter of Sepe v. Goord, 1 A.D.3d 667, 668, 766 N.Y.S.2d 614 [2003] ). The record also reflects that the hearing was conducted within the time frames permitted by appropriate extensions ( see Matter of McNeil v. Fischer, 95 A.D.3d 1520, 1521, 944 N.Y.S.2d 401 [2012];Matter of Martinez v. Fischer, 82 A.D.3d 1380, 1381, 919 N.Y.S.2d 541 [2011] ). Furthermore, we are satisfied on this record that petitioner was provided with adequate employee assistance ( see Matter of McNeil v. Fischer, 95 A.D.3d at 1521, 944 N.Y.S.2d 401;Matter of Liner v. Fischer, 56 A.D.3d 1088, 1088, 868 N.Y.S.2d 368 [2008],lv. denied12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009] ).

Nor are we convinced by petitioner's arguments concerning the sufficiency of the evidence. The testimony of an employee witness, together with the misbehavior reports and to/from reports, provided substantial evidence supporting a finding of petitioner's guilt on each charge ( see Matter of Abreu v. Fischer, 84 A.D.3d 1597, 1597, 923 N.Y.S.2d 783 [2011];Matter of Watson v. New York State Dept. of Correctional Servs., 82 A.D.3d 1435, 1435, 919 N.Y.S.2d 545 [2011] ). Petitioner waived the testimony of...