Boggs v. Martuscello, 84 A.D.3d 1667 (N.Y. App. Div. 2011). · Go Syfert
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Boggs v. Martuscello, 84 A.D.3d 1667 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
14 citation events (14 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of McMaster v. Annucci (nyappdiv, 2016-04-14)
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of McMaster v. Annucci
N.Y. App. Div. · 2016 · confidence medium
The record reflects that when petitioner advised the Hearing Officer that he had not received a copy of that report, the Hearing Officer provided him with a copy and the hearing was adjourned for two weeks in order to give him time to prepare a defense (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) MatterofReesevFischer
N.Y. App. Div. · 2014 · confidence medium
The misbehavior report and related documentation, together with the testimony from the sergeant, -2- 518198 correction officer and investigator involved in the discovery and investigation of the incident, provide substantial evidence to support the determination of guilt (see Matter of Harrison v Fischer, 104 AD3d 1032, 1032 [2013]; Matter of Booker v Fischer, 102 AD3d 1045, 1046 [2013]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) Reese v. Fischer
N.Y. App. Div. · 2014 · confidence medium
The misbehavior report and related documentation, together with the testimony from the sergeant, correction officer and investigator involved in the discovery and investigation of the incident, provide substantial evidence to support the determination of guilt (see Matter of Harrison v Fischer, 104 AD3d 1032, 1032 [2013]; Matter of Booker v Fischer, 102 AD3d 1045, 1046 [2013]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) Reese v. Fischer
N.Y. App. Div. · 2014 · confidence medium
The misbehavior report and related documentation, together with the testimony from the sergeant, correction officer and investigator involved in the discovery and investigation of the incident, provide substantial evidence to support the determination of guilt (see Matter of Harrison v Fischer, 104 AD3d 1032, 1032 [2013]; Matter of Booker v Fischer, 102 AD3d 1045, 1046 [2013]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) Sylvester v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Petitioner’s contention that he was denied certain documentary evidence relating to the testing of the substance found in his locker is unpreserved for our review in light of his failure to raise an objection on that ground either at the hearing or on administrative appeal (see Matter of Torres v Fischer, 106 AD3d 1342 [2013]; Matter of Shorter v Prack, 100 AD3d at 1178 ; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Filpo v Goord, 37 AD3d 891 [2007]).
discussed Cited as authority (rule) Sylvester v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Petitioner’s contention that he was denied certain documentary evidence relating to the testing of the substance found in his locker is unpreserved for our review in light of his failure to raise an objection on that ground either at the hearing or on administrative appeal (see Matter of Torres v Fischer, 106 AD3d 1342 [2013]; Matter of Shorter v Prack, 100 AD3d at 1178 ; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Filpo v Goord, 37 AD3d 891 [2007]).
discussed Cited as authority (rule) Karacostantakis v. Prack
N.Y. App. Div. · 2013 · confidence medium
Petitioner failed to preserve his argument that there was not a proper foundation for the admission of the drug test results (see Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) Karacostantakis v. Prack
N.Y. App. Div. · 2013 · confidence medium
Petitioner failed to preserve his argument that there was not a proper foundation for the admission of the drug test results (see Matter of Shorter v Prack, 100 AD3d 1178, 1179 [2012]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) Francis v. Prack
N.Y. App. Div. · 2013 · confidence medium
Petitioner, however, failed to preserve this claim as he did not raise it either at the second disciplinary hearing or in his administrative appeal (see Matter of Shorter v Brack, 100 AD3d 1178 ,1179 [2012]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) Francis v. Prack
N.Y. App. Div. · 2013 · confidence medium
Petitioner, however, failed to preserve this claim as he did not raise it either at the second disciplinary hearing or in his administrative appeal (see Matter of Shorter v Brack, 100 AD3d 1178 ,1179 [2012]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
discussed Cited as authority (rule) Shorter v. Prack
N.Y. App. Div. · 2012 · confidence medium
Petitioner’s claims that the drug testing procedures set forth in 7 NYCRR 1010.5 were not followed and that a proper foundation was not laid for the positive drug test results have not been preserved for our review due to his failure to raise them either at the hearing or in his administrative appeal (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Lamb v Goord, 27 AD3d 807, 808 [2006]).
discussed Cited as authority (rule) Shorter v. Prack
N.Y. App. Div. · 2012 · confidence medium
Petitioner’s claims that the drug testing procedures set forth in 7 NYCRR 1010.5 were not followed and that a proper foundation was not laid for the positive drug test results have not been preserved for our review due to his failure to raise them either at the hearing or in his administrative appeal (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Lamb v Goord, 27 AD3d 807, 808 [2006]).
discussed Cited as authority (rule) Love v. Prack
N.Y. App. Div. · 2011 · confidence medium
The misbehavior report, hearing testimony and confidential information reviewed by the Hearing Officer provide substantial evidence to support the determination of guilt (see Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]; Matter of Rivera v Artus, 82 AD3d 1431 [2011]).
discussed Cited as authority (rule) Boyle v. Fischer
N.Y. App. Div. · 2011 · confidence medium
The misbehavior report, testimony of the investigator who prepared it, confidential testimony and confidential documents provide substantial evidence to support the determination of guilt (see Matter of Montgomery v Fischer, 84 AD3d 1666, 1667 [2011]; Matter of Boggs v Martuscello, 84 AD3d 1667, 1668 [2011]).
Retrieving the full opinion text from the archive…
In the Matter of Steven J. Boggs
v.
Daniel Martuscello, as Acting Superintendent
Appellate Division of the Supreme Court of the State of New York.
May 26, 2011.
84 A.D.3d 1667
Cited by 14 opinions  |  Published

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

[*1668] During a routine inspection, correction officers intercepted and opened a package sent to petitioner by a female visitor. The package contained a book that appeared to have been tampered with and, upon further inspection, a quantity of marihuana was discovered concealed in the binding. Following further investigation, petitioner was charged in a misbehavior report with conspiring to introduce contraband into the facility, soliciting others to smuggle contraband into the facility and violating facility package procedures. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored it, the documentary evidence and the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Houston v Fischer, 69 AD3d 1086, 1086 [2010]; Matter of Adorno v Goord, 35 AD3d 930, 931 [2006]). Petitioner’s assertion that a proper foundation for the drug test results was not established in accordance with 7 NYCRR 1010.5 is not preserved for our review due to his failure to raise it either at the hearing or on his administrative appeal (see Matter of White v Superintendent of Wyoming Correctional Facility, 69 AD3d 1180, 1181 [2010]; see also Matter of Gargano v Goord, 278 AD2d 716, 717 [2000], lv denied 96 NY2d 716 [2001]). Furthermore, we find no merit to his claim that he was not given proper notice of the misbehavior report inasmuch as the correction officer who served it upon him testified that he did so prior to the hearing and the Hearing Officer provided petitioner with another copy and adjourned the hearing to afford him the opportunity to review it. In view of the foregoing, we find no reason to disturb the determination finding petitioner guilty of the charges at issue.

Mercure, J.P, Rose, Lahtinen, Stein and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.