At page 890 Reviewing record for bias and lack of merit19 citing cases“the record does not support petitioner's contention that the hearing officer was biased or that the determination flowed from the alleged bias”
- Matter of Williams v. Annucci, 2018 NY Slip Op 4161 (N.Y. App. Div. 4th Dep't 2018).publishedContrary to petitioner's contention, the record does not support the conclusion that the Hearing Officer was biased or that the determination flowed from the alleged bias ( see Matter of Colon v Fischer , 83 AD3d 1500, 1501-1502 [4th Dept…
- Medina v. Fischer, 137 A.D.3d 1584 (N.Y. App. Div. 4th Dep't 2016).published The record does not support petitioner’s further contention that the Hearing Officer “was biased or that the determination flowed from the alleged bias” (Matter of Rodriguez v Herbert, 270 AD2d 889, 890 [2000]; see Matter of Colon v Fische…
- Amaker v. Fischer, 112 A.D.3d 1371 (N.Y. App. Div. 4th Dep't 2013).published Contrary to petitioner’s contention, the record does not establish that the Hearing Officer was biased or that the determination flowed from the alleged bias (see Matter of Rodriguez v Herbert, 270 AD2d 889, 890 [2000]).
- Alvarez v. Fischer, 94 A.D.3d 1404 (N.Y. App. Div. 4th Dep't 2012).published“The record does not support petitioner’s contention that the Hearing Officer was biased or that the determination flowed from the alleged bias” (Matter of Rodriguez v Herbert, 270 AD2d 889, 890 [2000]; see Matter of Colon v Fischer, 83 AD…
- Edwards v. Fischer, 87 A.D.3d 1328 (N.Y. App. Div. 4th Dep't 2011).publishedThere is no support in the record for the contention of petitioner that the Hearing Officer’s determination was influenced by any alleged bias against petitioner (see Matter of Rodriguez v Herbert, 270 AD2d 889, 890 [2000]). “ ‘The mere fa…
- Colon v. Fischer, 83 A.D.3d 1500 (N.Y. App. Div. 4th Dep't 2011).publishedContrary to petitioner’s contention, the record does not establish “that the Hearing Officer was biased or that the determination flowed from the alleged bias” (Matter of Rodri guez v Herbert, 270 AD2d 889, 890 [2000]).
- Purcell v. McKoy, 54 A.D.3d 1113 (N.Y. App. Div. 3d Dep't 2008).publishedPetitioner’s claim that the Hearing Officer was biased is not substantiated by the record and there is no indication that the determination flowed from any alleged bias (see Matter of Witkowski v Goord, 45 AD3d 1068, 1069 [2007]; Matter of…
- Britt v. Fischer, 54 A.D.3d 1087 (N.Y. App. Div. 3d Dep't 2008).publishedThe misbehavior report, the testimony of its author and the confidential information considered by the Hearing Officer in camera provide substantial evidence supporting the determination of guilt (see Matter of Berry v Goord, 13 AD3d 947 […
- Gourdine v. Goord, 37 A.D.3d 1038 (N.Y. App. Div. 4th Dep't 2007).published“The record does not support petitioner’s contention that the Hearing Officer was biased or that the determination flowed from the alleged bias” (Matter of Rodriguez v Herbert, 270 AD2d 889, 890 [2000]).
- Williams v. Goord, 23 A.D.3d 872 (N.Y. App. Div. 3d Dep't 2005).publishedThe record clearly indicates the reason for the Hearing Officer’s decision to end the questioning of this witness (see Matter of Rodriguez v Herbert, 270 AD2d 889, 890 [2000]), and petitioner was given a written statement thereof (see 7 NY…
Show 6 more citing cases
- Clark v. Annucci, 170 A.D.3d 1499 (N.Y. App. Div. 4th Dep't 2019).publishedContrary to petitioner's further contention, the record does not establish " that the Hearing Officer was biased or that the determination flowed from the alleged bias' " ( Matter of Colon v Fischer , 83 AD3d 1500, 1501 [4th Dept 2011]; se…
- Matter of Ballard v. Kickbush, 2018 NY Slip Op 6638 (N.Y. App. Div. 4th Dep't 2018).publishedWith respect to both misbehavior reports, the record does not establish " that the Hearing Officer was biased or that the determination[s] flowed from the alleged bias' " ( Matter of Colon v Fischer , 83 AD3d 1500, 1501 [4th Dept 2011]; se…
- Liner v. Fischer, 96 A.D.3d 1416 (N.Y. App. Div. 4th Dep't 2012).published “Contrary to petitioner’s contention, the record does not establish ‘that the Hearing Officer was biased or that the determination flowed from the alleged bias’ ” (Matter of Colon v Fischer, 83 AD3d 1500, 1501 [2011]; see Matter of Rodrigu…
- Medina, Jose v. Fischer, Brian, No. TP 14-02248 (N.Y. App. Div. 4th Dep't Mar. 18, 2016).published
- Alvarez, Ramon v. Fischer, Brian, No. TP 11-01530 (N.Y. App. Div. 4th Dep't Apr. 20, 2012).published
- Colon, Rivas v. Fischer, Brian, No. TP 10-02181 (N.Y. App. Div. 4th Dep't Apr. 29, 2011).published
At page 889 Reviewing evidence sufficiency and procedural compliance in disciplinary hearings2 citing cases“Upon our in camera review of the confidential information, we conclude that the Hearing Officer properly made that assessment based upon the objective nature of the proof therein.”
- Matter of Ramirez v. Annucci, 138 A.D.3d 1262 (N.Y. App. Div. 3d Dep't 2016).publishedAccordingly, we find that petitioner was not prejudiced by any purported error in commencing the hearing approximately four hours too early, and petitioner had an adequate amount of time to review the relevant documents and prepare a defen…
- Melendez v. Berbary, 89 A.D.3d 1524 (N.Y. App. Div. 4th Dep't 2011).publishedWe reject petitioner’s contention that the determination should be annulled on the ground that he received inadequate assistance from the employee assistant assigned to his case pursuant to 7 NYCRR 251-4.1. “[I]n order to succeed on his cl…
Other citing cases
- Liner, Joshua v. Fischer, Brian, No. TP 12-00223 (N.Y. App. Div. 4th Dep't June 8, 2012).published
- Melendez, Michael v. Berbary, James L., No. CA 10-00954 (N.Y. App. Div. 4th Dep't Nov. 18, 2011).published
v.
Victor Herbert, as Superintendent of Collins Correctional Facility
—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner commenced this proceeding seeking to annul a determination that he violated inmate rule 118.10 (7 NYCRR 270.2 [B] [19] [i] [starting a fire]). The misbehavior report and the testimony of its author, together with confidential information provided by informants, constitute substantial evidence supporting the determination {see, Matter of Abdur-Raheem v Mann, 85 NY2d 113, 123; Matter of Rose v Goord, 259 AD2d 806, Iv denied 93 NY2d 810). Although the Hearing Officer did not personally interview the confidential informants, he made an independent assessment of their reliability based on the nature of the information provided and the fact that similar information came from unrelated sources {see generally, Matter of Abdur-Raheem v Mann, supra, at 119-120, 123; Matter of Franklin v Hoke, 174 AD2d 908). Upon our in camera review of the confidential information, we conclude that the Hearing Officer properly made that assessment based upon the objective nature of the proof therein.
Contrary to petitioner’s contention, the author of the misbehavior report did not have to witness the incident, as long as he “has ascertained the facts of the incident”, which he did by interviewing numerous inmates (7 NYCRR 251-3.1 [b]; see, Matter of Muhammad v Coombe, 237 AD2d 993, 994). We reject the contentions of petitioner with regard to his inmate assistant. A prison disciplinary hearing “may not be held until 24 hours after the assistant meets with the inmate” (7 NYCRR 253.6 [a]). Here, the hearing began but was stopped as soon as the Hearing Officer learned that petitioner had not yet met with his assistant. The hearing continued two days after petitioner had an opportunity to meet with his assistant, and thus there was reasonable compliance with the regulations. Petitioner received meaningful employee assistance (see, 7 NYCRR 251-4.2; Matter of Joyce v Goord, 246 AD2d 926, 927; Matter of Ortiz v Rourke, 241 AD2d 962, 963). In any event,[*890] petitioner failed to show that he was prejudiced by his assistant’s alleged inadequacies (see, Matter of Konigsberg v Selsky, 255 AD2d 702, 703; Matter of Serrano v Coughlin, 152 AD2d 790, 792).
The Hearing Officer did not err in failing to call as a witness a correction officer who could not provide testimony relevant to the proceeding (see, Matter of Ortiz v Rourke, supra, at 963). Although the Hearing Officer did not give a written statement to petitioner concerning the refusal to call the witness (see, 7 NYCRR 254.5 [a]), annulment of the determination is not required because the Hearing Officer placed on the record the reasons for the denial (see, Matter of McCorkle v Coughlin, 194 AD2d 1034, 1035).
The record does not support petitioner’s contention that the Hearing Officer was biased or that the determination flowed from the alleged bias (see, Matter of Hooper v Goord, 247 AD2d 884; Matter of Dawes v Selsky [appeal No. 2], 242 AD2d 907; Matter of Ortiz v Rourke, supra, at 963). Finally, we have considered petitioner’s remaining contentions and conclude that they are lacking in merit. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Fahey, J.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Kehoe, JJ.