Tavarez v. Annucci, 134 A.D.3d 1374 (N.Y. App. Div. 2015). · Go Syfert
Search
Tavarez v. Annucci, 134 A.D.3d 1374 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
17 citation events (17 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Black v. Annucci (nyappdiv, 2021-09-23)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Black v. Annucci
N.Y. App. Div. · 2021 · confidence medium
In any event, petitioner's claim that he did not possess the weapons that were found at the location of the altercation, as well as his exculpatory statements and denial of his involvement in the incident, raised a credibility issue for the Hearing Officer to resolve ( see Matter of Bouknight , 181 AD3d at 1080 ; Matter of Spencer v Annucci , 179 AD3d 1372, 1373 [2020]; Matter of Tavarez v Annucci , 134 AD3d 1374, 1375 [2015]).
discussed Cited as authority (rule) Matter of Bouknight v. Annucci
N.Y. App. Div. · 2020 · confidence medium
In any event, petitioner's claim that he did not possess the weapon that was found at the location of the altercation raised a credibility issue for the Hearing Officer to resolve ( see id. ; Matter of Tavarez v Annucci , 134 AD3d 1374, 1375 [2015]).
discussed Cited as authority (rule) Matter of Matthews v. Annucci
N.Y. App. Div. · 2019 · confidence medium
The misbehavior report, hearing testimony and related documentary evidence provide substantial evidence to support finding petitioner guilty of possessing a weapon ( see Matter of Tavarez v Annucci , 134 AD3d 1374, 1374 [2015]; Matter of Hammond v Selsky , 28 AD3d 1000, 1000 [2006]; Matter of Tarbell v Goord , 263 AD2d 563, 563 [1999]).
discussed Cited as authority (rule) Matter of Townsend v. Noeth
N.Y. App. Div. · 2019 · confidence medium
In any event, petitioner's claim that he did not possess the weapon that was found at the location of the incident raised a credibility issue for the Hearing Officer to resolve ( see Matter of Tavarez v Annucci , 134 AD3d 1374, 1375 [2015]; Matter of Pica v Selsky , 274 AD2d 712, 713 [2000]).
discussed Cited as authority (rule) Matter of Liggins v. New York State Dept. of Corr. & Community Supervision
N.Y. App. Div. · 2019 · confidence medium
Petitioner's contention that he did not ingest any weapon and that the scalpel pieces found in the cell were not his presented credibility issues for the Hearing Officer to resolve ( see Matter of Lebron v Annucci , 163 AD3d 1387 , 1387 [2018]; Matter of Tavarez v Annucci , 134 AD3d 1374, 1375 [2015]).
discussed Cited as authority (rule) Matter of Credell v. Hurt
N.Y. App. Div. · 2018 · confidence medium
Matter of Tavarez v Annucci , 134 AD3d 1374, 1375 [2015]; Matter of Sheard v Fischer , 107 AD3d 1261, 1261 [2013]; Matter of Garcia v Fischer , 68 AD3d 1311, 1312 [2009]), and, given that an appropriate extension was obtained to re-serve petitioner with the correct paperwork and commence the disciplinary hearing, we discern no prejudice to petitioner.
discussed Cited as authority (rule) Matter of Wilson v. Venettozzi
N.Y. App. Div. · 2018 · confidence medium
Turning to the merits, the misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt ( see Matter of Gano v Venettozzi , 142 AD3d 1240, 1240 [2016]; Matter of Tavarez v Annucci , 134 AD3d 1374, 1375 [2015]).
discussed Cited as authority (rule) Matter of Salinsky v. Rodriguez
N.Y. App. Div. · 2017 · confidence medium
Nonetheless, as to the remainder of the charges, which related to a frisk of petitioner that preceded the search of his quarters, the relevant misbehavior report, the unusual incident report and supporting documentation provide substantial evidence to support the determination that petitioner was guilty of refusing a direct order and failing to comply with frisk procedures (see Matter of Tavarez v Annucci, 134 AD3d 1374, 1374 [2015]; Matter of James v Goord, 38 AD3d 1074, 1074 [2007]).
discussed Cited as authority (rule) Matter of Williams v. Venettozzi
N.Y. App. Div. · 2017 · confidence medium
The misbehavior report, related documentation, photograph of the weapon and hearing testimony provide substantial evidence of petitioner’s guilt (see Matter of Gomez v New York State Dept. of Corr. & Community Supervision, 147 AD3d 1140, 1141 [2017]; Matter of Tavarez v Annucci, 134 AD3d 1374, 1375 [2015]).
discussed Cited as authority (rule) Matter of Marhone v. Schuck
N.Y. App. Div. · 2016 · confidence medium
Although petitioner denied possessing the weapon, which he contends had been planted in his cell in retaliation for a previous incident in which he had been exonerated, such claim presented a credibility issue for the Hearing Officer to resolve (see Matter of Tavarez v Annucci, 134 AD3d 1374, 1375 [2015]).
discussed Cited as authority (rule) Matter of Bartello v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Further, the discrepancies between the misbehavior report and other evidence regarding who authorized the cell searches, what the weapon was wrapped in and the cell number where the weapon was found were explained through testimony at the hearing, which the Hearing Officer credited (see Matter of Tavarez v Annucci, 134 AD3d 1374, 1375 [2015]; Matter of Bilal v Fischer, 92 AD3d 1046, 1047 [2012]).
discussed Cited as authority (rule) Matter of Girard v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Substantial evidence, including the misbehavior reports, related documentation and the hearing testimony, supports the determination of guilt with respect to the charges in the first and third misbehavior reports (see Matter of Genyard v Annucci, 136 AD3d 1091, 1091 [2016]; Matter of Tavarez v Annucci, 134 AD3d 1374, 1374 [2015]).
discussed Cited as authority (rule) Matter of Sawyer v. Annucci
N.Y. App. Div. · 2016 · confidence medium
Turning to the merits, the misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Tavarez v Annucci, 134 AD3d 1374, 1375 [2015]; Matter of Douglas v Fischer, 126 AD3d 1244, 1245 [2015], lv denied 26 NY3d 904 [2015]).
Retrieving the full opinion text from the archive…
In the Matter of Edward Tavarez
v.
Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision
Appellate Division of the Supreme Court of the State of New York.
Dec 24, 2015.
134 A.D.3d 1374
Cited by 14 opinions  |  Published

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of respondent finding petitioner guilty of violating certain prison disciplinary rules.

After correction officials obtained a letter authored by petitioner indicating that he possessed a weapon, petitioner was ordered to undergo a strip frisk. During the strip frisk, petitioner was uncooperative and failed to obey a correction officer’s directives to position his body in a certain manner. As a result, he was placed on a contraband watch and was charged in a misbehavior report with refusing a direct order and failing to comply with frisk procedures. While on the contraband watch, petitioner was walking back to his mattress after using the commode when a sharpened piece of plexiglass fell from his left hand onto the floor. Consequently, he was charged in a second misbehavior report with possessing a weapon. Following two separate tier III disciplinary hearings, petitioner was found guilty of the charges contained in both reports and the determinations were upheld on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. With respect to the disciplinary determination finding petitioner guilty of refusing a direct order and failing to comply with frisk procedures, the misbehavior report, related documentation and hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Quezada v Fischer, 113 AD3d 1004, 1004 [2014]; Matter of Moreno v Fischer, 100 AD3d 1167, 1167 [2012]). Although petitioner denied writing the letter and maintained that he complied with strip frisk procedures, his testimony presented a credibility issue for the Hearing Officer to resolve (see Matter of Gee v Goord, 21 AD3d 636, 637 [2005]). Petitioner’s remaining contentions with respect to this disciplinary determination have not been preserved for our review.

[*1375] Likewise, the disciplinary determination finding petitioner guilty of possessing a weapon is also supported hy substantial evidence consisting of the misbehavior report, related documentation and the testimony adduced at the second hearing (see Matter of Quezada v Fischer, 113 AD3d at 1004; Matter of Moreno v Fischer, 100 AD3d at 1167). Petitioner’s protestation that he did not possess the weapon, but that it was planted, again presented a credibility issue for the Hearing Officer to resolve (see Canalas Sanchez v Annucci, 126 AD3d 1194, 1194-1195 [2015]; Matter of Perez v Fischer, 69 AD3d 1279, 1279 [2010]). The discrepancy in the documentary evidence regarding the date that the incident occurred was adequately explained as a clerical error by the sergeant who completed both documents (see Matter of Davis v Fischer, 98 AD3d 1154 [2012]; Matter of Geraci v Fischer, 63 AD3d 1467, 1468 [2009]). In view of the foregoing, the petition must be dismissed.

Peters, P.J., McCarthy, Lynch and Devine, JJ., concur. Adjudged that the determinations are confirmed, without costs, and petition dismissed.