Ortiz v. Fischer, 75 A.D.3d 1042 (N.Y. App. Div. 2010). · Go Syfert
Search
Ortiz v. Fischer, 75 A.D.3d 1042 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
9 citation events (9 in the last 25 years) across 1 distinct court.
Strongest positive: Smith v. Martuscello (nyappdiv, 2011-06-30)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Smith v. Martuscello
N.Y. App. Div. · 2011 · confidence medium
The Hearing Officer did not err in denying petitioner’s request to call the escort officer as a witness, as petitioner admitted that the officer had no direct knowledge of the incident (see Matter of Ellison v Fischer, 79 AD3d 1538, 1539 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1042-1043 [2010]).
discussed Cited as authority (rule) Valdez v. Fischer
N.Y. App. Div. · 2011 · confidence medium
Contrary to petitioner’s claim, the chain of custody of the sample was established in accordance with the regulatory requirements as is evidenced by the information on the request for urinalysis test form and the testimony of the officer who tested the sample (see 7 NYCRR 1020.4 [e] [1]; Matter of Stanford v Fischer, 77 AD3d 1013, 1014 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1042 [2010]).
discussed Cited as authority (rule) Watson v. New York State Department of Correctional Services
N.Y. App. Div. · 2011 · confidence medium
Initially, we find that the misbehavior report, the hearing testimony of a correction officer present at the incident and petitioner’s own testimony that he was present at the scene when the response team arrived provide substantial evidence to support the determination of guilt with regard to the charges of demonstration and creating a disturbance (see Matter of Ortiz v Fischer, 75 AD3d 1042, 1042 [2010]; Matter of Owens v Fischer, 75 AD3d 1020, 1021 [2010]).
discussed Cited as authority (rule) Scott v. Fischer
N.Y. App. Div. · 2011 · confidence medium
Finally, we find no evidence of hearing officer bias in the record, but rather that the determination was the result of the evidence produced at the hearing (see Matter of Hamilton v Bezio, 76 AD3d 1125 , 1126 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1043 [2010]).
discussed Cited as authority (rule) Mayo v. Fischer
N.Y. App. Div. · 2011 · confidence medium
Finally, the record does not reveal any hearing officer bias but, rather, that the determination resulted from the evidence presented at the hearing, including the testimony of the correction officer who was assaulted and another who witnessed the incident (see Matter of Reese v Bezio, 75 AD3d 1029, 1030 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1043 [2010]).
discussed Cited as authority (rule) Mitchell v. Fischer
N.Y. App. Div. · 2011 · confidence medium
The detailed misbehavior report, along with petitioner’s admission that he possessed many of the items alleged, provide substantial evidence to support the determination of guilt (see Matter of Tafari v Selsky, 76 AD3d 1144 , 1145 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1042 [2010]).
discussed Cited as authority (rule) Tafari v. Fischer
N.Y. App. Div. · 2010 · confidence medium
We also reject petitioner’s contention that the Hearing Officer was biased, finding, instead, that the determination of guilt was based upon the evidence presented at the hearing (see Matter of Gourdine v Venettozzi, 76 AD3d 736 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1043 [2010]).
discussed Cited as authority (rule) Kirshtein v. Bezio
N.Y. App. Div. · 2010 · confidence medium
Lastly, the record establishes that the determination resulted from the voluminous evidence presented against petitioner, rather than any claimed hearing officer bias (see Matter of Ortiz v Fischer, 75 AD3d 1042, 1043 [2010]).
Retrieving the full opinion text from the archive…
In the Matter of Carlos Ortiz
v.
Brian Fischer, as Commissioner of Correctional Services
Appellate Division of the Supreme Court of the State of New York.
Jul 29, 2010.
75 A.D.3d 1042
Cited by 8 opinions  |  Published

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 a prison disciplinary rule.

After his urine twice tested positive for the presence of cannabinoids, petitioner was issued a misbehavior report charging him with the use of a controlled substance. He was found guilty following a tier III disciplinary hearing. Petitioner’s administrative appeal was unavailing, after which he commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, positive test results and testimony of the testing officer, along with petitioner’s admission during the hearing that he smoked marihuana, provide substantial evidence to support the determination (see Matter of Covington v Smith, 63 AD3d 1453, 1454 [2009], lv denied 13 NY3d 709 [2009]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]). Additionally, we find that the chain of custody was sufficiently established by the testing forms and the testing officer’s hearing testimony (see 7 NYCRR 1020.4 [e] [1] [i]; Matter of Smart v Fischer, 67 AD3d 1222, 1222 [2009], lv denied 14 NY3d 705 [2010]). Furthermore, contrary to petitioner’s contention, all of the necessary documentation required to support the admission of the positive test results into evidence is contained in the record and any alleged errors in the daily worksheets were of no moment, as the calibration slips printed directly from the testing machine showing positive tests contained petitioner’s correct identification number (see 7 NYCRR 1020.4 [e] [1] [iv]; 1020.5 [a] [1]; Matter of Johnson v Fischer, 73 AD3d 1369, 1370 [2010]).

Turning to his procedural contentions, we find that petitioner was not improperly denied the right to call a witness, as the rec[*1043] ord reflects that the witness had no direct knowledge regarding petitioner’s positive test results (see Matter of Williams v Fischer, 69 AD3d 1278, 1278-1279 [2010]; Matter of Brown v Taylor, 62 AD3d 1230, 1232 [2009]). Further, our review of the record demonstrates that the determination of guilt was the result of petitioner’s admissions and the evidence presented against him, rather than any alleged hearing officer bias (see Matter of Bermudez v Fischer, 71 AD3d 1361, 1361-1362 [2010]; Matter of Pettus v New York State Dept. of Correctional Servs., 70 AD3d 1164, 1164 [2010]).

We have examined petitioner’s remaining contentions and find them to be either unpreserved or unpersuasive.

Cardona, EJ., Rose, Lahtinen, Garry and Egan Jr., JJ, concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.