Dillard v. Fischer, 98 A.D.3d 761 (N.Y. App. Div. 2012). · Go Syfert
Search
Dillard v. Fischer, 98 A.D.3d 761 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
13 citation events (13 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Mercer v. Venettozzi (nyappdiv, 2016-09-22)
Top citers, strongest first. 7 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Mercer v. Venettozzi
N.Y. App. Div. · 2016 · confidence medium
Petitioner did not request that any potential witnesses be interviewed prior to the hearing (see Matter of Letizia v Graham, 119 AD3d 1296 , 1297 [2014], lv denied 24 NY3d 912 [2015]; Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]), and our review of the hearing transcript reveals that petitioner failed to make a request at the hearing for the testimony of the doctor from the facility where he received medical treatment (see Matter of Laliveres v Prack, 136 AD3d 1082, 1083 [2016]; Matter of Dillard v Fischer, 98 AD3d at 762 ; Matter of Hamilton v Prack, 95 AD3d 1512 , 1513 [2012]).
discussed Cited as authority (rule) Laliveres v. Prack
N.Y. App. Div. · 2016 · confidence medium
Moreover, given that petitioner did not request the Hearing Officer to call either his wife or the correction officer who obtained his urine specimen to testify at the hearing, we find no merit to his assertion that he was improperly denied the right to call them as witnesses (see Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]; Matter of Cooper v Goord, 284 AD2d 844, 845 [2001]).
discussed Cited as authority (rule) Laliveres v. Prack
N.Y. App. Div. · 2016 · confidence medium
Moreover, given that petitioner did not request the Hearing Officer to call either his wife or the correction officer who obtained his urine specimen to testify at the hearing, we find no merit to his assertion that he was improperly denied the right to call them as witnesses (see Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]; Matter of Cooper v Goord, 284 AD2d 844, 845 [2001]).
discussed Cited as authority (rule) Possert v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Although this proceeding was improperly transferred, as no issue of substantial evidence was raised in the petition, we will retain jurisdiction and address the merits in the interest of judicial economy (see Matter of Dillard v Fischer, 98 AD3d 761, 761 [2012]).
discussed Cited as authority (rule) Possert v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Although this proceeding was improperly transferred, as no issue of substantial evidence was raised in the petition, we will retain jurisdiction and address the merits in the interest of judicial economy (see Matter of Dillard v Fischer, 98 AD3d 761, 761 [2012]).
discussed Cited as authority (rule) Lewis v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Having failed to request the testimony of the three inmate witnesses in response to the Hearing Officer’s inquiry, petitioner cannot now complain (see Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]).
discussed Cited as authority (rule) Lewis v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Having failed to request the testimony of the three inmate witnesses in response to the Hearing Officer’s inquiry, petitioner cannot now complain (see Matter of Dillard v Fischer, 98 AD3d 761, 762 [2012]).
Retrieving the full opinion text from the archive…
In the Matter of Marlon Dillard
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Aug 2, 2012.
98 A.D.3d 761
Cited by 12 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 finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was visiting with his fiancée in the visiting room when a correction officer observed her with her hand in his pants making a back and forth motion. Petitioner was removed from the area and searched, and the visit was terminated. Thereafter, petitioner was charged with various violations of prison rules and, following a tier III disciplinary hearing, he was found guilty of committing a sex offense and a facility visiting violation. On administrative appeal, respondent affirmed the determination. Petitioner then commenced this CPLR article 78 proceeding, which was transferred to this Court.*

We confirm. Petitioner’s first contention, that the Hearing Officer was not properly designated to preside over his hearing, is contradicted by the evidence in the record. Petitioner’s assertion that he was deprived of his right to call a witness at his hearing is similarly unavailing. Although given the opportunity to do so prior to the hearing, petitioner failed to request that[*762] any witnesses testify at the hearing. Petitioner also failed to make any such request at the hearing and, in fact, affirmed that he was not requesting any witnesses. “Having failed to request any . . . witnesses, petitioner cannot now be heard to complain” (Matter of Mastropietro v New York State Dept. of Corrections, 52 AD3d 1125, 1126 [2008], lv denied 11 NY3d 711 [2008]; see Matter of Cornwall v Fischer, 74 AD3d 1507, 1509 [2010]; Matter of Blackwell v Goord, 5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]).

Peters, P.J., Mercure, Lahtinen, Kavanagh and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Although this proceeding was improperly transferred as no issue of substantial evidence was presented in the petition, we will retain jurisdiction and address the merits in the interest of judicial economy (see Matter of Lewis v Lape, 90 AD3d 1259, 1259 n [2011], lv denied 18 NY3d 809 [2012]).