Fernandez v. Fischer, 110 A.D.3d 1422 (N.Y. App. Div. 2013). · Go Syfert
Fernandez v. Fischer, 110 A.D.3d 1422 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
5 citation events (5 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Ramirez v. Annucci (nyappdiv, 2016-04-14)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Ramirez v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Contrary to petitioner’s contention, a review of the record, including the Hearing Officer’s consideration of the misbehavior report together with the testimony and documentation provided by prison officials who witnessed the aftermath of the incident and investigated it, provide substantial evidence to support the determination of guilt (see Matter of James v New York State Dept. of Corr. & Community Supervision, 127 AD3d 1537, 1537 [2015]; Matter of Fernandez v Fischer, 110 AD3d 1422, 1422-1423 [2013]; Matter of Watson v Fischer, 108 AD3d 1006, 1007 [2013]; cf. Matter of Lopez v New York…
discussed Cited as authority (rule) Matter of James v. New York State Department of Corrections and Community Supervision
N.Y. App. Div. · 2015 · confidence medium
The misbehavior report, related documentation and testimony from the correction officer who investigated the incident provide substantial evidence to support the determination of guilt (see Matter of Fernandez v Fischer, 110 AD3d 1422, 1422 [2013]; Matter of Leslie v Fischer, 107 AD3d 1264, 1265 [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
We further find, upon a thorough review of the record, that substantial evidence does not support that part of the determination finding petitioner guilty of possessing a weapon inasmuch as no weapon was ever recovered, no one witnessed petitioner in possession of a weapon and the medical evidence on this issue is not compelling (compare Matter of Fernandez v Fischer, 110 AD3d 1422, 1422-1423 [2013]).
discussed Cited "see" Matter of Jackson v. Prack
N.Y. App. Div. · 2015 · signal: see · confidence high
Douglas never agreed to do so and, after he was moved to another prison, he completed a refusal form in which he declined to testify on the ground that he did not “know what[ ] [was] going on.” *1244 As a general rule, “no violation of the right to call witnesses will be found when there was no prior assent to testify, but the reason for the refusal appears in the record” (Matter of Hill v Selsky, 19 AD3d at 66-67 ; see Matter of Fernandez v Fischer, 110 AD3d 1422, 1423 [2013]).
Retrieving the full opinion text from the archive…
In the Matter of Geovanny Fernandez
v.
Brian S. 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 1422
Cited by 4 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.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules prohibiting violent conduct, creating a disturbance, assault, fighting and weapons possession as a result of a fight between himself and another inmate. Following a tier III disciplinary hearing, he was found guilty as charged. Petitioner commenced this CPLR article 78 proceeding after the determination was affirmed upon administrative appeal.

We confirm. Contrary to petitioner’s contention, the detailed misbehavior report, combined with the testimony and documentation provided by prison officials who witnessed the aftermath of the incident and investigated it, constitute substantial evidence to support the determination of guilt. Despite the fact that the weapon was not recovered, the victim told prison officials that he had been stabbed by petitioner, and other evi-

[*1423] dence demonstrated that the victim had sustained numerous puncture wounds (see Matter of Sheppard v Goord, 264 AD2d 916, 917 [1999]). Petitioner’s contrary assertion that he had not attacked the victim created a credibility question for the Hearing Officer to resolve (see Matter of Watson v Fischer, 108 AD3d 1006, 1006 [2013]).

Petitioner was not deprived of his right to call an inmate witness, as the victim consistently refused to testify and made his reasons for doing so clear in a refusal form (see Matter of Lam-age v Fischer, 100 AD3d 1176, 1176 [2012]; Matter of Hill v Selsky, 19 AD3d 64, 66-67 [2005]). Petitioner’s remaining contentions, to the extent they are properly before us, have been considered and found to lack merit.

Rose, J.P., Stein, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.