Morris-Hill v. Fischer, 104 A.D.3d 978 (N.Y. App. Div. 2013). · Go Syfert
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Morris-Hill v. Fischer, 104 A.D.3d 978 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
26 citation events (26 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Getfield v. Annucci (nyappdiv, 2019-06-06)
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Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Getfield v. Annucci
N.Y. App. Div. · 2019 · confidence medium
"On the other hand, where a good[-]faith reason for the denial appears on the record, this amounts to a regulatory violation requiring that the matter be remitted for a new hearing" ( Matter of Morris-Hill v Fischer , 104 AD3d 978, 978 [2013] [citations omitted]; see Matter of Humphrey v Venettozzi , 149 AD3d 1435, 1436 [2017]).
discussed Cited as authority (rule) Humphrey v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
In view of this, and given that substantial evidence otherwise supports the disciplinary determination, Supreme Court properly remitted the matter for a new hearing (see Matter of Hand v Gutwein, 113 AD3d 975, 976 [2014], lv denied 22 NY3d 866 [2014]; Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]).
discussed Cited as authority (rule) Humphrey v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
In view of this, and given that substantial evidence otherwise supports the disciplinary determination, Supreme Court properly remitted the matter for a new hearing (see Matter of Hand v Gutwein, 113 AD3d 975, 976 [2014], lv denied 22 NY3d 866 [2014]; Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]).
discussed Cited as authority (rule) Humphrey v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
In view of this, and given that substantial evidence otherwise supports the disciplinary determination, Supreme Court properly remitted the matter for a new hearing (see Matter of Hand v Gutwein, 113 AD3d 975, 976 [2014], lv denied 22 NY3d 866 [2014]; Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]).
discussed Cited as authority (rule) Matter of Peterson v. Annucci
N.Y. App. Div. · 2016 · confidence medium
"It is well settled that an inmate has a conditional right to call witnesses at a disciplinary hearing provided their testimony would not jeopardize institutional safety or correctional goals" (Matter of Morris- Hill v Fischer, 104 AD3d 978, 978 [2013] [citations omitted]; see Matter of Johnson v Prack, 122 AD3d 1323, 1323 [2014]).
discussed Cited as authority (rule) Matter of Peterson v. Annucci
N.Y. App. Div. · 2016 · confidence medium
“It is well settled that an inmate has a conditional right to call witnesses at a disciplinary hearing provided their testimony would not jeopardize institutional safety or correctional goals” (Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013] [citations omitted]; see Matter of Johnson v Prack, 122 AD3d 1323, 1323 [2014]).
discussed Cited as authority (rule) Matter of Payton v. Annucci
N.Y. App. Div. · 2016 · confidence medium
However, given *1224 that the Hearing Officer set forth a good faith reason for the denial on the record, he committed a regulatory violation and remittal for a new hearing, rather than expungement, is the appropriate remedy (see Matter of Morris-Hill v Fischer, 104 AD3d 978, 978-979 [2013]; Matter of Santiago v Fischer, 76 AD3d 1127 , 1127 [2010]).
discussed Cited as authority (rule) Matter of Allaway v. Prack
N.Y. App. Div. · 2016 · confidence medium
Given that the Hearing Officer articulated a good-faith reason for denying the witnesses and for his lack of effort in locating them, we find that petitioner’s regulatory right to call witnesses was violated and not his constitutional right, and remittal for a new hearing is the proper remedy (see Matter of Texeira v Fischer, 115 AD3d 1137 , 1138 [2014], affd 26 NY3d 230 [2015]; Matter of Morris-Hill v Fischer, 104 AD3d 978, 978-979 [2013]).
discussed Cited as authority (rule) Medina v. Sheahan
N.Y. App. Div. · 2016 · confidence medium
Therefore, because “a good faith reason for the denial [of petitioner’s rights] appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner’s constitutional rights, “requiring that the matter be remitted for a new hearing” (Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]; see generally Matter of Johnson v Prack, 122 AD3d 1323, 1324 [2014]).
discussed Cited as authority (rule) Medina v. Sheahan
N.Y. App. Div. · 2016 · confidence medium
Therefore, because “a good faith reason for the denial [of petitioner’s rights] appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner’s constitutional rights, “requiring that the matter be remitted for a new hearing” (Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]; see generally Matter of Johnson v Prack, 122 AD3d 1323, 1324 [2014]).
discussed Cited as authority (rule) Matter of Jackson v. Prack
N.Y. App. Div. · 2015 · confidence medium
Inasmuch as the determination is otherwise supported by substantial evidence and the Hearing Officer articulated “a good faith reason for the denial [of Douglas as a witness] . . . , this amounts to a regulatory violation requiring that the matter be remitted for a new hearing” (Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]; see Matter of Hand v Gutwein, 113 AD3d 975, 976 [2014], lv denied 22 NY3d 866 [2014]).
discussed Cited as authority (rule) Johnson v. Prack
N.Y. App. Div. · 2014 · confidence medium
Where, as here, “a good faith reason for the denial appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner’s constitutional rights, “requiring that the matter be remitted for a new hearing” (Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]; see Santiago, 76 AD3d at 1127).
discussed Cited as authority (rule) Johnson v. Prack
N.Y. App. Div. · 2014 · confidence medium
Where, as here, “a good faith reason for the denial appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner’s constitutional rights, “requiring that the matter be remitted for a new hearing” (Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]; see Santiago, 76 AD3d at 1127).
discussed Cited as authority (rule) Hand v. Gutwein
N.Y. App. Div. · 2014 · confidence medium
Accordingly, we find that under the circumstances herein, Supreme Court correctly remitted the matter for a new hearing rather than order expungement (see Matter of Morris-Hill v Fischer, 104 AD3d 978, 978-979 [2013]; Matter of Gross v Yelich, 101 AD3d 1298, 1298 [2012]; Matter of Alvarez v Goord, 30 AD3d at 121 ).
discussed Cited as authority (rule) Hand v. Gutwein
N.Y. App. Div. · 2014 · confidence medium
Accordingly, we find that under the circumstances herein, Supreme Court correctly remitted the matter for a new hearing rather than order expungement (see Matter of Morris-Hill v Fischer, 104 AD3d 978, 978-979 [2013]; Matter of Gross v Yelich, 101 AD3d 1298, 1298 [2012]; Matter of Alvarez v Goord, 30 AD3d at 121 ).
discussed Cited as authority (rule) Griffin v. Prack
N.Y. App. Div. · 2013 · confidence medium
Here, we agree with respondent that the denial of the witnesses constituted a regulatory violation, and the proper remedy is to remit the matter for a new hearing (see Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]; Matter of Moulton v Fischer, 100 AD3d at 1131; Matter of Lopez v Fischer, 100 AD3d 1069, 1071 [2012]).
discussed Cited as authority (rule) Griffin v. Prack
N.Y. App. Div. · 2013 · confidence medium
Here, we agree with respondent that the denial of the witnesses constituted a regulatory violation, and the proper remedy is to remit the matter for a new hearing (see Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]; Matter of Moulton v Fischer, 100 AD3d at 1131; Matter of Lopez v Fischer, 100 AD3d 1069, 1071 [2012]).
discussed Cited "see" Matter of Reyes v. Keyser
N.Y. App. Div. · 2017 · signal: accord · confidence high
Inasmuch as an “outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness’s testimony, constitutes a clear constitutional violation” (Matter of Alvarez v Goord, 30 AD3d 118, 121 [2006]; accord Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]), the proper remedy is annulment of the determination as to the first misbehavior report and expungement (see Matter of Brown v Fischer, 76 AD3d 1132 , 1133 [2010]; Matter of Caldwell v Goord, 34 AD3d 1173, 1174-1175 [2006]).
discussed Cited "see" Texeira v. Fischer (2×)
N.Y. App. Div. · 2014 · signal: see · confidence high
Significantly, “[w]hile constitutional violations of an inmate’s right to call witnesses will result in expungement, such a result is generally not required where the hearing officer only violates the inmate’s regulatory rights regarding witnesses” (Matter of Alvarez v Goord, 30 AD3d 118, 120 [2006] [citation omitted]; see Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]).
discussed Cited "see" Texeira v. Fischer (2×)
N.Y. App. Div. · 2014 · signal: see · confidence high
Significantly, “[w]hile constitutional violations of an inmate’s right to call witnesses will result in expungement, such a result is generally not required where the hearing officer only violates the inmate’s regulatory rights regarding witnesses” (Matter of Alvarez v Goord, 30 AD3d 118, 120 [2006] [citation omitted]; see Matter of Morris-Hill v Fischer, 104 AD3d 978, 978 [2013]).
Retrieving the full opinion text from the archive…
In the Matter of David Morris-Hill
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Mar 7, 2013.
104 A.D.3d 978
Cited by 22 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 was charged in a misbehavior report with using a controlled substance after a sample of his urine twice tested positive for the presence of THC. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing, and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

Petitioner contends, among other things, that he was improperly denied the right to have the correction officer who tested his urine and authored the misbehavior report testify at the hearing. The record discloses that the Hearing Officer denied this individual as a witness because he had retired. The Hearing Officer, however, made no efforts to ascertain this individual’s availability or if he would be willing to testify at the hearing despite his retirement.

It is well settled that an inmate has a conditional right to call witnesses at a disciplinary hearing provided their testimony would not jeopardize institutional safety or correctional goals (see 7 NYCRR 254.5 [a]; Matter of Lopez v Fischer, 100 AD3d 1069, 1070 [2012]; Matter of Santiago v Fischer, 76 AD3d 1127, 1127 [2010]). As this Court has recognized, “[a] hearing officer’s actual outright denial of a witness without a stated good-faith reason, or lack of any effort to obtain a requested witness’s testimony, constitutes a clear constitutional violation” (Matter of Alvarez v Goord, 30 AD3d 118,121 [2006]) requiring expungement (see Matter of Caldwell v Goord, 34 AD3d 1173, 1174-1175 [2006]). On the other hand, where a good faith reason for the denial appears on the record, this amounts to a regulatory violation requiring that the matter be remitted for a new hearing (see e.g. Matter of Lopez v Fischer, 100 AD3d at 1071; Matter of Santiago v Fischer, 76 AD3d at 1127; Matter of Alvarez v Goord, 30 AD3d at 121).

Here, the Hearing Officer articulated a good faith reason for the denial on the record, that being the correction officer’s retirement. Respondent concedes and we agree that this amounted to a violation of petitioner’s regulatory right to call[*979] witnesses. Under the circumstances presented, the Hearing Officer should have made further inquiry to determine if the correction officer would testify even though he was retired. As no such effort was made, this matter must be remitted for a new hearing (see Matter of Alvarez v Goord, 30 AD3d at 121). In view of our disposition, we need not address petitioner’s remaining claims.

Peters EJ., Rose, Stein and Egan Jr., JJ., concur. Adjudged that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court’s decision.