Harvey v. Fischer, 94 A.D.3d 1303 (N.Y. App. Div. 2012). · Go Syfert
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Harvey v. Fischer, 94 A.D.3d 1303 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …any item that may be classified as a weapon ... by description, use or appearance at p. 1303 ⚠ not in text
18 citation events (18 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Rodari v. Venettozzi (nyappdiv, 2020-09-24)
Top citers, strongest first. 16 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Rodari v. Venettozzi
N.Y. App. Div. · 2020 · confidence medium
Petitioner's contrary testimony presented a credibility issue for the Hearing Officer to resolve ( see Matter of Harvey v Fischer , 94 AD3d 1303, 1303 [2012]; Matter of Dozier v Selsky , 54 AD3d 1074, 1075 [2008]).
cited Cited as authority (rule) Matter of Myers v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]).
discussed Cited as authority (rule) Johnson v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Petitioner’s claims that he did not know that the weapon was in his cell and that it must have been planted presented a credibility issue for resolution by the Hearing Officer (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]).
discussed Cited as authority (rule) Johnson v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Petitioner’s claims that he did not know that the weapon was in his cell and that it must have been planted presented a credibility issue for resolution by the Hearing Officer (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Griffin v Selsky, 60 AD3d 1247, 1248 [2009]).
discussed Cited as authority (rule) Greathouse v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Although petitioner maintains that the item was not sharp enough to be considered a weapon, the applicable rule prohibits inmates from possessing “any item that may be classified as a weapon ... by description, use or appearance” (7 NYCRR 270.2 [B] [14] [i]); thus, this presented a credibility issue for resolution by the Hearing Officer, who personally examined the item at the hearing (see Matter of Harvey v Fischer, 94 AD 3d 1303, 1303 [2012]; Matter of Tinnirello v Selsky, 51 AD3d 1238, 1239 [2008]; Matter of Mallen v Hearing Officer, Great Meadow Correctional Facility, 304 AD2d 879, 879…
discussed Cited as authority (rule) Powell v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Contrary to petitioner’s argument, the determination finding him guilty of possession of a weapon is supported by substantial evidence, including the misbehavior report and petitioner’s hearing testimony (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]).
discussed Cited as authority (rule) Greathouse v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Although petitioner maintains that the item was not sharp enough to be considered a weapon, the applicable rule prohibits inmates from possessing “any item that may be classified as a weapon ... by description, use or appearance” (7 NYCRR 270.2 [B] [14] [i]); thus, this presented a credibility issue for resolution by the Hearing Officer, who personally examined the item at the hearing (see Matter of Harvey v Fischer, 94 AD 3d 1303, 1303 [2012]; Matter of Tinnirello v Selsky, 51 AD3d 1238, 1239 [2008]; Matter of Mallen v Hearing Officer, Great Meadow Correctional Facility, 304 AD2d 879, 879…
discussed Cited as authority (rule) Powell v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Contrary to petitioner’s argument, the determination finding him guilty of possession of a weapon is supported by substantial evidence, including the misbehavior report and petitioner’s hearing testimony (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]).
discussed Cited as authority (rule) Walker v. Fischer
N.Y. App. Div. · 2013 · confidence medium
The misbehavior report, related documentation, including a photograph of the broken piece of mirror, and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Bosquet v Bezio, 69 AD3d 1257, 1257 [2010]).
discussed Cited as authority (rule) Walker v. Fischer
N.Y. App. Div. · 2013 · confidence medium
The misbehavior report, related documentation, including a photograph of the broken piece of mirror, and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Bosquet v Bezio, 69 AD3d 1257, 1257 [2010]).
discussed Cited as authority (rule) Valdez v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Initially, insofar as petitioner pleaded guilty to making false statements and engaging in an unauthorized exchange, he is precluded from challenging the determination of guilt with respect to those charges (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Linnen v Prack, 92 AD3d 986, 987 [2012]).
discussed Cited as authority (rule) Valdez v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Initially, insofar as petitioner pleaded guilty to making false statements and engaging in an unauthorized exchange, he is precluded from challenging the determination of guilt with respect to those charges (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Linnen v Prack, 92 AD3d 986, 987 [2012]).
discussed Cited as authority (rule) Church v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Given that petitioner pleaded guilty to possessing excessive state property and possessing contraband, he is precluded from challenging the determination of guilt with respect thereto (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Linnen v Prack, 92 AD3d 986, 987 [2012]).
discussed Cited as authority (rule) Church v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Given that petitioner pleaded guilty to possessing excessive state property and possessing contraband, he is precluded from challenging the determination of guilt with respect thereto (see Matter of Harvey v Fischer, 94 AD3d 1303, 1303 [2012]; Matter of Linnen v Prack, 92 AD3d 986, 987 [2012]).
discussed Cited as authority (rule) Brickhouse v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Petitioner’s remaining contentions, including his claim that he failed to receive proper notice of the current rule prohibiting UCC items, were not raised in his administrative appeal and, therefore, not properly preserved for our review (see generally Matter of Harvey v Fischer, 94 AD3d 1303, 1303-1304 [2012]).
discussed Cited as authority (rule) Brickhouse v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Petitioner’s remaining contentions, including his claim that he failed to receive proper notice of the current rule prohibiting UCC items, were not raised in his administrative appeal and, therefore, not properly preserved for our review (see generally Matter of Harvey v Fischer, 94 AD3d 1303, 1303-1304 [2012]).
Retrieving the full opinion text from the archive…
In the Matter of James Harvey III
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Apr 19, 2012.
94 A.D.3d 1303
Cited by 18 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 certain prison disciplinary rules.

During a search of petitioner’s cell, a correction officer found a pen with a needle attached to the ink cartridge. As a result, petitioner was charged in a misbehavior report with possessing a weapon, possessing an altered item and possessing contraband. He was found guilty of the charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Inasmuch as petitioner pleaded guilty to possessing an altered item and possessing contraband, he is precluded from challenging the determination of guilt with respect to those charges (see Matter of Rodriguez v Fischer, 76 AD3d 1131, 1131-1132 [2010]; Matter of Pedraza v Fischer, 65 AD3d 1434, 1435 [2009]). As for the charge of possessing a weapon, the misbehavior report and related documentation, including a photograph clearly revealing that the item was a dangerous instrumentality (see 7 NYCRR 270.2 [B] [14] [i]), provide substantial evidence supporting the determination of guilt with respect to that charge (see Matter of Chiarappa v Fischer, 84 AD3d 1628, 1629 [2011]; Matter of Truman v Fischer, 75 AD3d 1019, 1020 [2010]). Although petitioner denied possessing a weapon and asserted that he used the item to cut out pictures from magazines, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Vidal-Ortiz v Fischer, 84 AD3d 1627, 1628 [2011]; Matter of Haynes v Bezio, 73 AD3d 1295, 1296 [2010]). His claim of hearing officer bias has not been preserved for our review due to his failure to raise it in his administrative appeal (see Matter of Hall v Fischer, 87 AD3d[*1304] 1235, 1236 [2011]; Matter of Crenshaw v Fischer, 87 AD3d 1246, 1247 [2011]).

Mercure, J.E, Lahtinen, Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.