At page 1260 Review of unpreserved arguments regarding misbehavior reports13 citing cases
- Matter of Simpson v. Jordan, 2025 NY Slip Op 01146 (N.Y. App. Div. 3d Dep't 2025).publishedAny claim that the subject discipline was retaliatory was not raised at the administrative hearings, and it is therefore unpreserved for our review ( see Matter of Williams v Department of Corr. & Community Supervision , 155 AD3d 1207, 120…
- Matter of Williams v. Dep't of Corr. & Cmty. Supervision, 155 A.D.3d 1207 (N.Y. App. Div. 3d Dep't 2017).publishedPetitioner’s remaining contention—that the misbehavior report was in retaliation for a grievance he had filed—was not raised at the hearing and, therefore, is unpreserved for our review (see Matter of Bookman v Fischer, 107 AD3d 1260, 1260…
- Claim of Boyd v. Prack, 136 A.D.3d 1136 (N.Y. App. Div. 3d Dep't 2016).published Furthermore, although petitioner claims that portions of the hearing were not electronically recorded, the hearing transcript does not substantiate this claim nor disclose the existence of gaps in the testimony that preclude meaningful rev…
- Matter of Pilet v. Annucci, 128 A.D.3d 1198 (N.Y. App. Div. 3d Dep't 2015).publishedAlthough there are some inaudible gaps, they are not so significant as to preclude meaningful review (see Matter of Merritt v Fischer, 108 AD3d 993, 994-995 [2013]; Matter of Bookman v Fischer, 107 AD3d 1260, 1260 [2013]).
- Sanders v. Annucci, 128 A.D.3d 1156 (N.Y. App. Div. 3d Dep't 2015).published Furthermore, upon reviewing the record, we do not find that the gaps in the hearing transcript preclude meaningful review (see Matter of Merritt v Fischer, 108 AD3d 993, 994-995 [2013]; Matter of Bookman v Fischer, 107 AD3d 1260, 1260 [201…
- White v. State, 117 A.D.3d 1250 (N.Y. App. Div. 3d Dep't 2014).published The testimony of petitioner and his inmate witnesses that he did not throw the bread presented a credibility issue for the Hearing Officer to resolve (see Matter of Watson v Fischer, 108 AD3d 1006, 1007 [2013]; Matter of Bookman v Fischer,…
- Fulton v. Chase, 115 A.D.3d 1033 (N.Y. App. Div. 3d Dep't 2014).published First addressing the determination finding petitioner guilty of creating a disturbance and refusing a direct order, we conclude that the second misbehavior report, together with the testimony provided by correction officials at the second…
- McNeil v. Fischer, 109 A.D.3d 1025 (N.Y. App. Div. 3d Dep't 2013).published Petitioner’s remaining argument, that the officer proffered both misbehavior reports in retaliation for the filing of a grievance, was not raised at either hearing and is therefore not properly before us (see Matter of Bookman v Fischer, 1…
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
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 Superintendent of Great Meadow Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with refusing a direct order and creating a disturbance. Following a tier II disciplinary hearing, he was found guilty of both charges. That determination was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.
Initially, we are unpersuaded by petitioner’s contention that gaps in the hearing transcript preclude meaningful review (see Matter of Argentina v Fischer, 98 AD3d 768, 769 [2012]). Upon reviewing the record, we find that the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Gentle v Bezio, 78 AD3d 1398, 1399 [2010]). The contrary testimony proffered by petitioner and his inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Fragosa v Moore, 93 AD3d 979, 980 [2012]). Petitioner’s claim that the misbehavior report was written in retaliation for grievances was not raised at the hearing and, therefore, is unpreserved for our review (see Matter of Gillard v White, 79 AD3d 1466, 1467 [2010]). Petitioner’s remaining contentions have been reviewed and are either not properly before this Court or lacking in merit.
Lahtinen, J.P., Spain, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.