Horne v. Fischer, 98 A.D.3d 788 (N.Y. App. Div. 2012). · Go Syfert
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Horne v. Fischer, 98 A.D.3d 788 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
22 citation events (22 in the last 25 years) across 1 distinct court.
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Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Rodari v. Venettozzi
N.Y. App. Div. · 2020 · confidence medium
The misbehavior report and related documentation, together with the hearing testimony, including the testimony of the correction officer who performed the search, provide substantial evidence supporting the determination of guilt ( see Matter of Dowling v Venettozzi , 177 AD3d 1063 , 1063 [2019], lv denied 35 NY3d 901 [2020]; Matter of Sawyer v Annucci , 140 AD3d 1499, 1500 [2016]; Matter of Horne v Fischer , 98 AD3d 788, 789 [2012]).
discussed Cited as authority (rule) Matter of Hill v. Venettozzi
N.Y. App. Div. · 2016 · confidence medium
Although petitioner challenges the reliability of the confidential information contained in the anonymous note that prompted the cell search, the note was not necessary to support the determination of guilt, which was based upon the actual discovery of the weapon (see Matter of Shufelt v Annucci, 138 AD3d 1336, 1337-1338 [2016]; Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]).
discussed Cited as authority (rule) Matter of Shufelt v. Annucci
N.Y. App. Div. · 2016 · confidence medium
The determination of guilt was based upon evidence establishing that petitioner had secreted weapons in his boots, rather that on the confidential *1338 information that led to the pat frisk, obviating the need to assess the confidential information (see Matter of Douglas v Fischer, 126 AD3d 1244, 1245 [2015], lv denied 26 NY3d 904 [2015]; Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]).
discussed Cited as authority (rule) Matter of Pricher v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Accordingly, contrary to petitioner’s contention, the misbehavior reports were not defective because they failed to reference the confidential information that prompted the initial search (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Muller v Fischer, 62 AD3d 1191, 1191-1192 [2009]).
discussed Cited as authority (rule) Matter of Telesford v. Annucci
N.Y. App. Div. · 2015 · confidence medium
There is no merit to petitioner’s claim that the Hearing Officer erred in failing to independently assess the reliability of certain confidential information inasmuch as such information did not constitute evidence upon which the determination was based (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Daniel v Fischer, 86 AD3d 892, 892 [2011]).
discussed Cited as authority (rule) Matter of Douglas v. Fischer
N.Y. App. Div. · 2015 · confidence medium
Although confidential information led to the pat frisk, it did not provide a basis for the determination of petitioner’s guilt (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Mullady v Bezio, 87 AD3d 765, 766 [2011]).
discussed Cited as authority (rule) Aguirre v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Additionally, there was no requirement that the Hearing Officer independently assess the veracity of the anonymous note that led to the search, inasmuch as the determination of guilt was based on the contraband discovered, rather than the contents of the note itself (see Matter of Fisher v Fischer, 105 AD3d at 1286 ; Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]).
discussed Cited as authority (rule) Aguirre v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Additionally, there was no requirement that the Hearing Officer independently assess the veracity of the anonymous note that led to the search, inasmuch as the determination of guilt was based on the contraband discovered, rather than the contents of the note itself (see Matter of Fisher v Fischer, 105 AD3d at 1286 ; Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]).
cited Cited as authority (rule) McKethan v. Prack
N.Y. App. Div. · 2013 · confidence medium
Servs., 101 AD3d 1198 , 1198 [2012]; Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]).
cited Cited as authority (rule) McKethan v. Prack
N.Y. App. Div. · 2013 · confidence medium
Servs., 101 AD3d 1198 , 1198 [2012]; Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]).
discussed Cited as authority (rule) Hinton v. Rock
N.Y. App. Div. · 2013 · confidence medium
Inasmuch as petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]; Matter of Sykes v Fischer, 98 AD3d 769, 770 [2012]).
discussed Cited as authority (rule) Hinton v. Rock
N.Y. App. Div. · 2013 · confidence medium
Inasmuch as petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]; Matter of Sykes v Fischer, 98 AD3d 769, 770 [2012]).
discussed Cited as authority (rule) Navarro v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Inasmuch as petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Santiago v Fischer, 101 AD3d 1206, 1206 [2012]; Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]).
discussed Cited as authority (rule) Oliver v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Inasmuch as petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]; Matter of Sykes v Fischer, 98 AD3d 769, 770 [2012]).
discussed Cited as authority (rule) Navarro v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Inasmuch as petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Santiago v Fischer, 101 AD3d 1206, 1206 [2012]; Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]).
discussed Cited as authority (rule) Oliver v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Inasmuch as petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Jordan v Fischer, 98 AD3d 788, 788 [2012]; Matter of Sykes v Fischer, 98 AD3d 769, 770 [2012]).
discussed Cited as authority (rule) Coons v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Moreover, contrary to petitioner’s contention, the transcript does not reveal the existence of significant gaps that preclude meaningful review (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Wallace v Prack, 93 AD3d 1056, 1057 [2012]) and, upon listening to the tape recording of the disciplinary hearing, we are unpersuaded by petitioner’s contention that the tape was defective or incomplete.
discussed Cited as authority (rule) Coons v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Moreover, contrary to petitioner’s contention, the transcript does not reveal the existence of significant gaps that preclude meaningful review (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Wallace v Prack, 93 AD3d 1056, 1057 [2012]) and, upon listening to the tape recording of the disciplinary hearing, we are unpersuaded by petitioner’s contention that the tape was defective or incomplete.
discussed Cited as authority (rule) Fisher v. Fischer
N.Y. App. Div. · 2013 · confidence medium
In addition, we find no merit to petitioner’s claim that the Hearing Officer failed to independently verify the credibility of the information contained in the anonymous notes leading to the search given that the determination of guilt was not based upon the contents of the notes, but rather upon the results of the search (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Nimmons v Fischer, 68 AD3d 1311 [2009]).
discussed Cited as authority (rule) Fisher v. Fischer
N.Y. App. Div. · 2013 · confidence medium
In addition, we find no merit to petitioner’s claim that the Hearing Officer failed to independently verify the credibility of the information contained in the anonymous notes leading to the search given that the determination of guilt was not based upon the contents of the notes, but rather upon the results of the search (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Nimmons v Fischer, 68 AD3d 1311 [2009]).
discussed Cited as authority (rule) Rodriguez v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Substantial evidence supports the determination of guilt in the form of the misbehavior report and related documentation, as well as the testimony of petitioner’s cellmate and the correction officer who searched the cell (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Wallace v Prack, 93 AD3d 1056, 1056 [2012]).
discussed Cited as authority (rule) Rodriguez v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Substantial evidence supports the determination of guilt in the form of the misbehavior report and related documentation, as well as the testimony of petitioner’s cellmate and the correction officer who searched the cell (see Matter of Horne v Fischer, 98 AD3d 788, 789 [2012]; Matter of Wallace v Prack, 93 AD3d 1056, 1056 [2012]).
Retrieving the full opinion text from the archive…
In the Matter of Reginald Horne
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 788
Cited by 14 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.

After a correction sergeant received confidential information that petitioner had a weapon in his cell, his cell was searched and a broken toothbrush with a sharpened tweezer half taped to the handle was discovered secreted between two boxes underneath petitioner’s bed. 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 following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

[*789] We confirm. Contrary to petitioner’s claim, we do not find that there are significant gaps in the hearing transcript that prevent meaningful review (see Matter of Povoski v Fischer, 93 AD3d 963, 964 [2012]; Matter of Fragosa v Moore, 93 AD3d 979, 979 [2012]). The misbehavior report and related documentation, together with the testimony of the correction officers involved in the search, provide substantial evidence supporting the determination of guilt (see Matter of Alache v Fischer, 91 AD3d 1240, 1241 [2012]; Matter of Parra v Fischer, 76 AD3d 724, 725 [2010], lv denied 15 NY3d 714 [2010]). While petitioner argues that the Hearing Officer failed to independently assess the credibility of the confidential source, this was not necessary as the determination at issue was not based upon the confidential information but rather upon the evidence establishing that petitioner had a weapon in his cell (see Matter of Nimmons v Fischer, 68 AD3d 1311 [2009]; Matter of Terrence v Fischer, 64 AD3d 1110 [2009]). Likewise, as the report was sufficiently detailed to give petitioner notice of the charges to enable him to prepare a defense, we reject petitioner’s claim that the misbehavior report was defective because it failed to reference the confidential information prompting the search (see Matter of Quezada v Fischer, 85 AD3d 1462, 1462 [2011]; Matter of Cody v Fischer, 84 AD3d 1651, 1651 [2011]). Lastly, petitioner’s claim of inadequate employee assistance has not been preserved for our review (see Matter of Cespedes v New York State Dept. of Correctional Servs., 68 AD3d 1429, 1430 [2009]).

Peters, P.J., Mercure, Malone Jr., Kavanagh and Egan Jr., JJ., concur. A that the determination is confirmed, without costs, and petition dismissed.