Fowler v. Fischer, 106 A.D.3d 1344 (N.Y. App. Div. 2013). · Go Syfert
Fowler v. Fischer, 106 A.D.3d 1344 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
31 citation events (31 in the last 25 years) across 1 distinct court.
Strongest positive: Harriott v. Koenigsmann (nyappdiv, 2017-04-27)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) Harriott v. Koenigsmann
N.Y. App. Div. · 2017 · confidence medium
Inasmuch as the record does not reflect that the Hearing Officer reviewed the logbooks or made any other effort to identify the witness, we cannot say that a diligent effort was made to locate the witness (cf. Matter of McClough v Fischer, 118 AD3d 1228, 1229 [2014]; Matter of Aguirre v Fischer, 111 AD3d 1219, 1220 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Harriott v. Koenigsmann
N.Y. App. Div. · 2017 · confidence medium
Inasmuch as the record does not reflect that the Hearing Officer reviewed the logbooks or made any other effort to identify the witness, we cannot say that a diligent effort was made to locate the witness (cf. Matter of McClough v Fischer, 118 AD3d 1228, 1229 [2014]; Matter of Aguirre v Fischer, 111 AD3d 1219, 1220 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Harriott v. Koenigsmann
N.Y. App. Div. · 2017 · confidence medium
Inasmuch as the record does not reflect that the Hearing Officer reviewed the logbooks or made any other effort to identify the witness, we cannot say that a diligent effort was made to locate the witness (cf. Matter of McClough v Fischer, 118 AD3d 1228, 1229 [2014]; Matter of Aguirre v Fischer, 111 AD3d 1219, 1220 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Matter of McBride v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Finally, there is nothing in the record to indicate that petitioner was denied a fair hearing or that the determination of guilt was the result of any alleged bias on the part of the Hearing Officer or a predetermination of guilt prior to the hearing (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Barnes v Bezio, 86 AD3d 884, 885 [2011]).
discussed Cited as authority (rule) Matter of Garrow v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Petitioner’s claim that the author of the misbehavior report testified falsely at the hearing and that the report was written in retaliation for a grievance that petitioner had previously filed presented credibility issues for the Hearing Officer to resolve (see Matter of Clark v Fischer, 120 AD3d 1468 , 1469 [2014], lv denied 24 NY3d 912 [2015]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Matter of Giano v. Prack
N.Y. App. Div. · 2016 · confidence medium
Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of White v Fischer, 95 AD3d 1582, 1583 [2012]).
discussed Cited as authority (rule) Matter of Donah v. Prack
N.Y. App. Div. · 2015 · confidence medium
Petitioner’s claims that the report was written in retaliation for prior grievances that he had filed, and that he hit the officer with the door by accident, presented credibility issues for the Hearing Officer to resolve (see Matter of Guillory v Fischer, 111 AD3d 1005, 1005 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Morrison v. Prack
N.Y. App. Div. · 2014 · confidence medium
Substantial evidence, in the form of the misbehavior reports, related documentation and hearing testimony, supports the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Jackson v Fischer, 98 AD3d 766, 767 [2012]).
discussed Cited as authority (rule) MatterofMorrisonvPrack
N.Y. App. Div. · 2014 · confidence medium
Substantial evidence, in the form of the misbehavior reports, related documentation and hearing testimony, supports the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Jackson v Fischer, 98 AD3d 766, 767 [2012]).
discussed Cited as authority (rule) Morrison v. Prack
N.Y. App. Div. · 2014 · confidence medium
Substantial evidence, in the form of the misbehavior reports, related documentation and hearing testimony, supports the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Jackson v Fischer, 98 AD3d 766, 767 [2012]).
discussed Cited as authority (rule) Quezada v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Moreover, petitioner’s assertion that he was denied a fair hearing is unavailing given that there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Wright v Fischer, 98 AD3d 759, 760 [2012]).
discussed Cited as authority (rule) Quezada v. Fischer
N.Y. App. Div. · 2014 · confidence medium
Moreover, petitioner’s assertion that he was denied a fair hearing is unavailing given that there is no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Wright v Fischer, 98 AD3d 759, 760 [2012]).
discussed Cited as authority (rule) Aguirre v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Under the circumstances, the Hearing Officer made reasonable efforts to identify and locate petitioner’s requested witness (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Jones v Bellamy, 80 AD3d 1029, 1030 [2011]).
discussed Cited as authority (rule) Aguirre v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Under the circumstances, the Hearing Officer made reasonable efforts to identify and locate petitioner’s requested witness (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Jones v Bellamy, 80 AD3d 1029, 1030 [2011]).
discussed Cited as authority (rule) Guillory v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Finally, there is no support in the record for petitioner’s claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Mat ter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Fisher v Fischer, 105 AD3d 1286, 1286 [2013]).
discussed Cited as authority (rule) Guillory v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Finally, there is no support in the record for petitioner’s claim that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Mat ter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Fisher v Fischer, 105 AD3d 1286, 1286 [2013]).
discussed Cited as authority (rule) Lashway v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Petitioner’s contention that the charges were in retaliation for reports he had filed against certain correction officers raised a credibility issue to be resolved by the Hearing Officer (see Matter of Blackwell v Fischer, 106 AD3d 1346, 1346 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Guillory v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Lashway v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Petitioner’s contention that the charges were in retaliation for reports he had filed against certain correction officers raised a credibility issue to be resolved by the Hearing Officer (see Matter of Blackwell v Fischer, 106 AD3d 1346, 1346 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Guillory v. Fischer
N.Y. App. Div. · 2013 · confidence medium
Finally, upon reviewing the record, we find no indication that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]).
discussed Cited as authority (rule) Flores v. Fischer
N.Y. App. Div. · 2013 · confidence medium
As for the remaining charges, the misbehavior report, documentary evi dence and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Williams v Fischer, 102 AD3d 1044, 1044 [2013]).
discussed Cited as authority (rule) Flores v. Fischer
N.Y. App. Div. · 2013 · confidence medium
As for the remaining charges, the misbehavior report, documentary evi dence and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Williams v Fischer, 102 AD3d 1044, 1044 [2013]).
discussed Cited as authority (rule) Fero v. Prack
N.Y. App. Div. · 2013 · confidence medium
Initially, the misbehavior report, supported by the testimony of several correction officers including the report’s author, provides substantial evidence to support the determination (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Torres v Fischer, 106 AD3d 1342, 1343 [2013]).
discussed Cited as authority (rule) Fero v. Prack
N.Y. App. Div. · 2013 · confidence medium
Initially, the misbehavior report, supported by the testimony of several correction officers including the report’s author, provides substantial evidence to support the determination (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied 21 NY3d 865 [2013]; Matter of Torres v Fischer, 106 AD3d 1342, 1343 [2013]).
discussed Cited as authority (rule) Abrams v. Fischer
N.Y. App. Div. · 2013 · confidence medium
To the extent that petitioner challenges the evidence against him, the misbehavior report and the testimony of the three correction officers who heard petitioner’s statements constitute substantial evidence to support the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied — NY3d —, 2013 NY Slip Op 84879 [2013]; Matter of Williams v Fischer, 102 AD3d 1044, 1044 [2013]).
discussed Cited as authority (rule) Abrams v. Fischer
N.Y. App. Div. · 2013 · confidence medium
To the extent that petitioner challenges the evidence against him, the misbehavior report and the testimony of the three correction officers who heard petitioner’s statements constitute substantial evidence to support the determination of guilt (see Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013], lv denied — NY3d —, 2013 NY Slip Op 84879 [2013]; Matter of Williams v Fischer, 102 AD3d 1044, 1044 [2013]).
discussed Cited as authority (rule) Greaves v. Prack
N.Y. App. Div. · 2013 · confidence medium
We have examined petitioner’s remaining arguments, including his claim that the Hearing Officer improperly denied his request for a staff witness who petitioner acknowledged was on a different floor at the time of the incident (see Matter of Blackwell v Fischer, 106 AD3d 1346, 1346 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013]), and find them to be unpersuasive.
discussed Cited as authority (rule) Greaves v. Prack
N.Y. App. Div. · 2013 · confidence medium
We have examined petitioner’s remaining arguments, including his claim that the Hearing Officer improperly denied his request for a staff witness who petitioner acknowledged was on a different floor at the time of the incident (see Matter of Blackwell v Fischer, 106 AD3d 1346, 1346 [2013]; Matter of Fowler v Fischer, 106 AD3d 1344, 1345 [2013]), and find them to be unpersuasive.
Retrieving the full opinion text from the archive…
In the Matter of Jamarr Fowler
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
May 23, 2013.
106 A.D.3d 1344
Cited by 29 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.

While escorting a group of inmates back from the gym, a correction officer noticed a bulge in the top of petitioner’s right[*1345] sock. After the officer ordered him to empty his pockets and place his items on a nearby heater, petitioner reached for his sock. In response, the officer forced him against the wall causing petitioner to drop a razor-type weapon that he had retrieved. Other correction officers assisted and a struggle ensued during which one officer was struck in the forehead by petitioner’s right elbow. Petitioner ignored directives to stop resisting. The officers ultimately gained control of petitioner, placed him in handcuffs and recovered the weapon. Petitioner was later charged in a misbehavior report with assaulting staff, refusing a direct order, possessing a weapon, engaging in violent conduct and violating frisk procedures. Following a rehearing of a tier III disciplinary proceeding, petitioner was found guilty of all of the charges 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 the correction officers familiar with the incident, provide substantial evidence supporting the determination of guilt (see Matter of McPherson v Lee, 101 AD3d 1330, 1331 [2012]; Matter of Moreno v Fischer, 100 AD3d 1167,1167 [2012]). Petitioner’s claim that the misbehavior report was written in retaliation for grievances he had filed against certain correction officers in B block presented a credibility issue for the Hearing Officer to resolve (see Matter of McPherson v Lee, 101 AD3d at 1331; Matter of White v Fischer, 87 AD3d 1249, 1250 [2011]).

In addition, we find no merit to petitioner’s contention that he was improperly denied witnesses. As for the two unnamed correction officers that petitioner claims were present at the time of the incident, the Hearing Officer exercised diligent efforts to identify them and eventually interviewed the two individuals who petitioner described (see Matter of Jones v Bellamy, 80 AD3d 1029, 1030 [2011]). They indicated that they did not have personal knowledge of the incident nor did the Deputy of Administration, who petitioner also requested as a witness. Consequently, the testimony of these witnesses was irrelevant to the charges (see Matter of Tafari v Fischer, 94 AD3d 1324, 1325 [2012], lv denied 19 NY3d 807 [2012]; Matter of Pante v Goord, 73 AD3d 1394, 1395 [2010]). Further, we find nothing in the record to indicate that petitioner was denied a fair and impartial hearing or that the determination flowed from any alleged bias on the part of the Hearing Officer (see Matter of Fragosa v Miller, 95 AD3d 1524, 1525 [2012]; Matter of Gonzalez v Fischer, 93 AD3d 1049, 1049 [2012], lv denied 19 NY3d 806 [2012]). Petitioner’s remaining arguments have been considered[*1346] and have been found to be unavailing. Therefore, we find no reason to disturb the determination of guilt.

Peters, EJ., Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.