Gittens v. Fischer, 100 A.D.3d 1121 (N.Y. App. Div. 2012). · Go Syfert
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Gittens v. Fischer, 100 A.D.3d 1121 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
9 citation events (9 in the last 25 years) across 1 distinct court.
Strongest positive: Gonzalez v. Annucci (nyappdiv, 2017-04-27)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Gonzalez v. Annucci
N.Y. App. Div. · 2017 · confidence medium
The rule was revised and renumbered in 2008 and a memorandum informing all inmates, including presumably petitioner, of the change was distributed at that time (see Matter of Hyatt v Annucci, 137 AD3d 1382, 1383 [2016], lv denied 27 NY3d 910 [2016]; Matter of Gittens v Fischer, 100 AD3d 1121, 1122 [2012]).
discussed Cited as authority (rule) Gonzalez v. Annucci
N.Y. App. Div. · 2017 · confidence medium
The rule was revised and renumbered in 2008 and a memorandum informing all inmates, including presumably petitioner, of the change was distributed at that time (see Matter of Hyatt v Annucci, 137 AD3d 1382, 1383 [2016], lv denied 27 NY3d 910 [2016]; Matter of Gittens v Fischer, 100 AD3d 1121, 1122 [2012]).
discussed Cited as authority (rule) Gonzalez v. Annucci
N.Y. App. Div. · 2017 · confidence medium
The rule was revised and renumbered in 2008 and a memorandum informing all inmates, including presumably petitioner, of the change was distributed at that time (see Matter of Hyatt v Annucci, 137 AD3d 1382, 1383 [2016], lv denied 27 NY3d 910 [2016]; Matter of Gittens v Fischer, 100 AD3d 1121, 1122 [2012]).
discussed Cited as authority (rule) Matter of Patterson v. Venettozzi
N.Y. App. Div. · 2016 · confidence medium
Initially, insofar as petitioner challenges that part of the determination finding him guilty of possessing gang-related material, we note that the second misbehavior report, confiscated documents and testimony of the author of the report, who was trained in identifying gang-related material, provide substantial evidence supporting it (see Matter of Gittens v Fischer, 100 AD3d 1121, 1121-1122 [2012]; Matter of Smith v Prack, 98 AD3d 780, 781 [2012]).
discussed Cited as authority (rule) Matter of Hyatt v. Annucci
N.Y. App. Div. · 2016 · confidence medium
We are not persuaded given that this rule was revised and renumbered in 2008, at which time a memorandum was provided to inmates, including presumably petitioner, advising of the change (see Matter of Gittens v Fischer, 100 AD3d 1121, 1122 [2012]; Matter of Watson v Fischer, 94 AD3d 1317, 1318 [2012]).
discussed Cited as authority (rule) Matter of Torres v. New York State Department of Corrections and Community Supervision
N.Y. App. Div. · 2015 · confidence medium
The misbehavior report, photographs and testimony of correction officers trained in deciphering gang-related communications provide substantial evidence supporting petitioner’s guilt of the charge of possessing gang-related material (see Matter of Gittens v Fischer, 100 AD3d 1121, 1121 [2012]; Matter of Smith v Prack, 98 AD3d 780, 781 [2012]).
discussed Cited as authority (rule) Madison v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Contrary to petitioner’s argument, the misbehavior report and the testimony of a sergeant trained in recognizing gang-related material constitute substantial evidence supporting the determination (see Matter of Smith v Fischer, 100 AD3d 1314, 1314 [2012]; Matter of Gittens v Fischer, 100 AD3d 1121, 1121 [2012]).
discussed Cited as authority (rule) Madison v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Contrary to petitioner’s argument, the misbehavior report and the testimony of a sergeant trained in recognizing gang-related material constitute substantial evidence supporting the determination (see Matter of Smith v Fischer, 100 AD3d 1314, 1314 [2012]; Matter of Gittens v Fischer, 100 AD3d 1121, 1121 [2012]).
Retrieving the full opinion text from the archive…
In the Matter of Jemal Gittens
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Nov 8, 2012.
100 A.D.3d 1121
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.

Petitioner posted a cartoon on the wall of his prison cell that depicted a person making hand gestures believed to be gang-related. As a result, petitioner was charged in a misbehavior report with possessing gang-related material. Following a tier III disciplinary hearing, he was found guilty of the charge and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and related documentation, together with the testimony of a correction officer experienced in identifying gang-related signals, provide substantial evidence supporting the determination of guilt (see Matter of Moore v Fischer, 76 AD3d 737, 737 [2010]; Matter of [*1122] Jenkins v Goord, 30 AD3d 719, 720 [2006]). Although petitioner maintained that the cartoon came from a magazine that had been approved by the media review committee and was not gang-related, and that it was exempt from the disciplinary rule, he failed to produce proof substantiating his claim. His testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Rodriguez v Fischer, 96 AD3d 1333 [2012]; Matter of Ayala v Fischer, 94 AD3d 1319, 1320 [2012]). Moreover, we find no merit to petitioner’s assertion that he was deprived of notice of changes to the disciplinary rule at issue inasmuch as a memorandum was circulated in 2008 informing all inmates of such changes and petitioner would have received such notice when he arrived at the facility in 2010 (see Matter of Watson v Fischer, 94 AD3d 1317, 1318 [2012]). In any event, the Hearing Officer provided petitioner with a copy of the revised rule and adjourned the hearing to give him an opportunity to review it, thereby alleviating any prejudice. Petitioner’s remaining contentions have either not been preserved for our review or are lacking in merit.

Peters, PJ., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.