Lashway v. Fischer, 110 A.D.3d 1420 (N.Y. App. Div. 2013). · Go Syfert
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Lashway v. Fischer, 110 A.D.3d 1420 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
8 citation events (8 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Baxter v. Annucci (nyappdiv, 2022-07-28)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Baxter v. Annucci
N.Y. App. Div. · 2022 · confidence medium
Turning to petitioner's procedural contentions, we are unpersuaded that petitioner was denied employee assistance as the record reflects that petitioner refused, both before and at the commencement of the hearing, to choose from any of the available employee assistants ( see Matter of Swinton v Venettozzi , 164 AD3d 1584 , 1585 [2018]; Matter of Lashway v Fischer , 110 AD3d 1420, 1420-1421 [2013]).
discussed Cited as authority (rule) Matter of Kennedy v. Annucci
N.Y. App. Div. · 2020 · confidence medium
The misbehavior reports, hearing testimony and confidential photographs submitted for in camera review provide substantial evidence to support the determination of guilt ( see Matter of Bouknight v Annucci , 181 AD3d 1079 , 1079 [2020]; Matter of Wigfall v New York State Dept. of Corr. & Community Supervision , 160 AD3d 1332 , 1332-1333 [2018]; Matter of Lashway v Fischer , 110 AD3d 1420, 1420 [2013]).
discussed Cited as authority (rule) Matter of Ellis v. Department of Corr. & Community Supervision
N.Y. App. Div. · 2019 · confidence medium
The detailed misbehavior report and the testimony of its author provide substantial evidence to support the finding that petitioner engaged in lewd conduct ( see Matter of McDonald v Annucci , 159 AD3d 1216 , 1217 [2018]; Matter of Terrence v Annucci , 134 AD3d 1339, 1340 [2015]; Matter of Lashway v Fischer , 110 AD3d 1420, 1420 [2013]).
discussed Cited as authority (rule) Matter of Swinton v. Venettozzi
N.Y. App. Div. · 2018 · confidence medium
Contrary to petitioner's claim, the record discloses that he was not denied his right to an employee assistant as he failed to select an individual from the list provided ( see Matter of Lashway v Fischer , 110 AD3d 1420, 1420 [2013]; Matter of Brown v Coughlin , 165 AD2d 935, 937 [1990]).
discussed Cited as authority (rule) Matter of McDonald v. Annucci
N.Y. App. Div. · 2018 · confidence medium
Supreme Court dismissed petitioner's application, and petitioner now appeals. [FN1] The detailed misbehavior reports and the testimony of their authors constitute substantial evidence to support the determination of guilt ( see Matter of Tigner v Annucci , 147 AD3d 1138, 1139 [2017]; Matter of Lashway v Fischer , 110 AD3d 1420, 1420 [2013]; Matter of Fero v Prack , 110 AD3d 1128, 1128 [2013]).
discussed Cited as authority (rule) Matter of Lopez v. New York State Department of Corrections and Community Supervision
N.Y. App. Div. · 2015 · confidence medium
Although petitioner denied any misconduct and claimed to be a victim of retaliation, this presented a credibility issue 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 Lashway v Fischer, 110 AD3d 1420, 1420 [2013]).
discussed Cited as authority (rule) Matter of Campbell v. Bedard
N.Y. App. Div. · 2014 · confidence medium
To the extent that petitioner contends that he was incompetent to adequately participate in the hearing, the confidential testimony establishes that the Hearing Officer properly considered petitioner’s mental health status and ability to participate in the hearing (see Matter of Lashway v Fischer, 110 AD3d 1420, 1420 [2013]; Matter of Sabino v Prack, 101 AD3d 1202, 1203 [2012]).
discussed Cited "see" Matter of Howard v. Prack
N.Y. App. Div. · 2016 · signal: see · confidence high
Although a therapist from OMH that petitioner had requested refused to testify, the Hearing Officer was obligated to interview, out of petitioner’s presence, an OMH clinician “as may be available” concerning petitioner’s mental condition (7 NYCRR 254.6 [c] [3]; see Matter of Lashway v Fischer, 110 AD3d 1420, 1420 [2013]).
Retrieving the full opinion text from the archive…
In the Matter of Steven Lashway
v.
Brian Fischer, as Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Oct 31, 2013.
110 A.D.3d 1420
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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was on mental health watch when he began punching a wall and spitting on the floor. After a correction officer ordered him to desist, petitioner exposed himself and urinated on the floor, berating the officer and using a racial epithet. As a result, petitioner was charged with lewd conduct, committing an unhygienic act and refusing a direct order and, following a tier III disciplinary hearing, he was found guilty of all charges. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding to challenge the determination.

We confirm. To the extent that petitioner challenges the evidence upon which the determination was founded, the misbehavior report, along with the testimony of its author, provide the requisite substantial evidence (see Matter of Harrison v Fischer, 104 AD3d 1032, 1032 [2013]; Matter of Alston v Fischer, 104 AD3d 974, 974 [2013], lv denied 21 NY3d 857 [2013]). 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]). The record further demonstrates that, consistent with the regulations, the Hearing Officer conducted an in camera interview with a representative from the Office of Mental Health and properly considered petitioner’s mental state, as reflected in the written disposition of the charges (see 7 NYCRR 254.6 [c] [3]; [f]; Matter of Scott v Fischer, 82 AD3d 1431, 1432 [2011]). Finally, the record belies petitioner’s assertion that he was improperly denied an employee assistant, inasmuch as two different correction officers testified that they served him with an assistance form and he refused to select one and petitioner admitted that, when given the second op[*1421] portunity, he tore the assistant form in half and dropped it in the toilet (see Matter of White v Fischer, 87 AD3d 1249, 1250 [2011]; Matter of Warren v Fischer, 63 AD3d 1466, 1467 [2009]).

We have considered petitioner’s remaining contentions and find them to be without merit.

Peters, P.J., Rose, Stein and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.