Callender v. Selsky, 41 A.D.3d 1065 (N.Y. App. Div. 2007). · Go Syfert
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Callender v. Selsky, 41 A.D.3d 1065 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
13 citation events (13 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Shabazz v. Annucci (nyappdiv, 2017-11-16)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Shabazz v. Annucci
N.Y. App. Div. · 2017 · confidence medium
As the issue that petitioner wished to pursue was collateral to his guilt, the Hearing Officer did not err in denying the witnesses as immaterial (see Matter of Williams v Annucci, 140 AD3d 1498, 1499 [2016]; Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).
discussed Cited as authority (rule) Stephens v. Lee
N.Y. App. Div. · 2014 · confidence medium
The hearing officer made reasonable, albeit unsuccessful, efforts to identify and locate a correction officer that the petitioner requested as a witness (see Matter of Aguirre v Fischer, 111 AD3d 1219 [2013]; Matter of Possert v Fischer, 106 AD3d 1350, 1351 [2013]; Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).
discussed Cited as authority (rule) Stephens v. Lee
N.Y. App. Div. · 2014 · confidence medium
The hearing officer made reasonable, albeit unsuccessful, efforts to identify and locate a correction officer that the petitioner requested as a witness (see Matter of Aguirre v Fischer, 111 AD3d 1219 [2013]; Matter of Possert v Fischer, 106 AD3d 1350, 1351 [2013]; Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).
discussed Cited as authority (rule) Kalwasinski v. Fischer
N.Y. App. Div. · 2011 · confidence medium
With regard to both misbehavior reports, the reports themselves, along with the hearing testimony, supporting documentation and videotapes of the incidents, provide substantial evidence to support the determinations of guilt (see Matter of Abreu v Fischer, 83 AD3d 1348, 1348 [2011]; Matter of Callender v Selsky, 41 AD3d 1065, 1065-1066 [2007]).
discussed Cited as authority (rule) Abreu v. Fischer
N.Y. App. Div. · 2011 · confidence medium
The misbehavior report, testimony of the correction officer who observed petitioner’s behavior and the videotape of the incident provide substantial evidence to support the determination of guilt (see Matter of Wahhab v Fischer, 77 AD3d 996, 997 [2010]; Matter of Callender v Selsky, 41 AD3d 1065, 1065-1066 [2007]).
discussed Cited as authority (rule) McFarlane v. Fischer
N.Y. App. Div. · 2009 · confidence medium
Petitioner’s remaining contentions, including his assertion that he was denied the right to call witnesses to testify on his behalf and his assertion that the incomplete hearing transcript prevents meaningful review, have been examined and found to be lacking in merit (see Matter of Berry v Goord, 42 AD3d 614 [2007]; Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]; see also Matter of Alvarez v Goord, 30 AD3d 118, 119-121 [2006]).
discussed Cited as authority (rule) Perez v. Fischer
N.Y. App. Div. · 2009 · confidence medium
Inasmuch as the record demonstrates that the duty of locking prisoners in their cells on the day in question was a random assignment that could have been performed by one of nearly 50 officers on duty, we find that petitioner failed to provide sufficient information to identify the witness he sought and, thus, we cannot say that the Hearing Officer failed to use reasonable efforts to secure the witness (see Matter of Davila v Selsky, 48 AD3d 846, 847 [2008]; Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).
discussed Cited as authority (rule) Jones v. Goord
N.Y. App. Div. · 2008 · confidence medium
The determination of guilt was supported by substantial evidence in the form of the misbehavior report, related documentary evidence and photographs, positive drug test results and hearing testimony (see Matter of Callender v Selsky, 41 AD3d 1065, 1065-1066 [2007]).
discussed Cited as authority (rule) Sweet v. Poole
N.Y. App. Div. · 2008 · confidence medium
Petitioner’s denial of the allegations and insistence that certain items found in his cell were not his created credibility issues for resolution by the Hearing Officer (see Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).
discussed Cited as authority (rule) Davila v. Selsky
N.Y. App. Div. · 2008 · confidence medium
Under these circumstances, we find that reasonable efforts were made to locate petitioner’s witnesses (see Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]; Matter of Folk v Goord, 29 AD3d 1182 [2006]).
discussed Cited as authority (rule) Frejomil v. LaClair
N.Y. App. Div. · 2007 · confidence medium
Petitioner’s denial of certain allegations created a credibility issue for resolution by the Hearing Officer (see Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]), as did his presentment of a retaliation defense (see Matter of Raqiyb v Goord, 30 AD3d 810 [2006]).
cited Cited as authority (rule) Wesolowski v. Donahue
N.Y. App. Div. · 2007 · confidence medium
Petitioner’s denial of the charge created a credibility issue for resolution by the Hearing Officer (see Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]).
discussed Cited as authority (rule) Cooper v. Selsky
N.Y. App. Div. · 2007 · confidence medium
The detailed misbehavior reports and other documentary evidence, the positive drug test results and the hearing testimony provide substantial evidence of petitioner’s guilt (see Matter of Callender v Selsky, 41 AD3d 1065, 1066 [2007]; Matter of Excell v Goord, 35 AD3d 946, 946 [2006]).
Retrieving the full opinion text from the archive…
In the Matter of Aaron Callender
v.
Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs
Appellate Division of the Supreme Court of the State of New York.
Jun 21, 2007.
41 A.D.3d 1065
Cited by 13 opinions  |  Published

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with possession of contraband, smuggling and violation of facility visitation rules after he was depicted on videotape and observed by a correction officer in the special housing unit visitation room attempting to place something in his rectum. After X rays revealed at least three foreign objects in his rectum, petitioner was placed on a contraband watch for several days and eventually turned over a razor blade in a cardboard sheath, matches and a match striker, a bag of tobacco and a green leafy substance in a latex glove finger, which was tested and determined to be marihuana. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. The determination was upheld upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and other documentary evidence, hearing testimony, drug test results, X rays and videotape provide substantial evidence to support the determi[*1066] nation (see Matter of Case v Goord, 34 AD3d 1065 [2006]; Matter of Serrano v Goord, 266 AD2d 661, 661 [1999], lv denied 94 NY2d 762 [2000]). Petitioner’s denial of the charges raised a credibility issue for the Hearing Officer to resolve (see Matter of Vassell v Goord, 26 AD3d 547, 547-548 [2006]; Matter of Callender v Selsky, 9 AD3d 703 [2004]).

Regarding petitioner’s claim that he was denied the right to call certain witness, we find that reasonable efforts were made to locate the inmate witness who petitioner sought, but he could not be identified based on the information that petitioner provided (see Matter of Rodriguez v Coombe, 239 AD2d 854, 854-855 [1997], lv dismissed 91 NY2d 907 [1998]; Matter of Gonzalez v Mann, 186 AD2d 876, 877 [1992]; Matter of S. v Coughlin, 172 AD2d 937, 937-938 [1991], lv denied 78 NY2d 855 [1991]). Further, although petitioner mentioned in passing at the hearing that he would seek the testimony of a certain correction officer, he did not mention the officer again when he requested other witnesses. In any event, the testimony sought from the officer involved collateral matters which were not relevant to the disciplinary determination at issue (see Matter of Nelson v Goord, 37 AD3d 889, 890 [2007]; Matter of Barber v Selsky, 23 AD3d 731, 732 [2005]). We have examined petitioner’s remaining contentions and find them to be without merit.

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.