tier III hearing in New York

2026The determination found after a tier III hearing that petitioner had violated various incarcerated individual rules. [*1] It is hereby ORDERED that said proceeding is unanimously dismissed without costs as moot ( see Matter of Free v Coombe , 234 AD2d 996, 996 [4th Dept 1996]).

2026The determination found after a tier III hearing that petitioner had violated various incarcerated individual rules. </p> <p></p>[*1] <p>It is hereby ORDERED that said proceeding is unanimously dismissed without costs as moot (<i>see Matter of Free v Coombe</i>, 234 AD2d 996, 996 [4th Dept 1996]).</p> <p>Entered: April 24, 2026</p> <p>Ann Dillon Flynn</p> <p>Clerk of the Court</p> </div> <div> <footer> <div> <p>Court Decisions</p> All Court Decisions Official Reports Service Bound Volumes Decision Search </div> <div> <p>Resources</p> RSS Feeds Style Manual Citation Tools Opinion Formatting &am

2019Petitioner's remaining contention is not preserved because it was not raised at the tier III hearing ( see Matter of Reeves v Goord , 248 AD2d 994, 995 [4th Dept 1998], lv denied 92 NY2d 804 [1998]).

2012Petitioner’s remaining contentions were not raised at the tier III hearing and therefore are not preserved for our review (see Matter of Reeves v Goord, 248 AD2d 994, 995 [1998], lv denied 92 NY2d 804 [1998]).

2017Rather, the record establishes that petitioner asked to consult with his attorney after the tier III hearing commenced, and it is well established that an inmate does not have a right to counsel at that hearing (see Wolff v McDonnell, 418 US 539, 570 [1974]; Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990]).

2017Rather, the record establishes that petitioner asked to consult with his attorney after the tier III hearing commenced, and it is well established that an inmate does not have a right to counsel at that hearing (see Wolff v McDonnell, 418 US 539, 570 [1974]; Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990]).

2017“It is beyond argument that allowing references to charges that have been dismissed and other mischievously equivocal information that might be unfairly construed to remain in prisoners’ records leaves inmates in jeopardy of having these references unfairly used against them” (Matter of Davidson v Coughlin, 154 AD2d 806, 806-807 [1989] [citation omitted]).

2017“It is beyond argument that allowing references to charges that have been dismissed and other mischievously equivocal information that might be unfairly construed to remain in prisoners’ records leaves inmates in jeopardy of having these references unfairly used against them” (Matter of Davidson v Coughlin, 154 AD2d 806, 806-807 [1989] [citation omitted]).

2019Contrary to petitioner's contention, the misbehavior reports, hearing testimony, documentary evidence, and video evidence constitute substantial evidence supporting the determination that petitioner violated the applicable inmate rules ( see generally Matter of Foster v Coughlin , 76 NY2d 964, 966 [1990]; Matter of Jones v Annucci , 141 AD3d 1108, 1108-1109 [4th Dept 2016]).

1997Memorandum: The misbehavior report and admissions of petitioner at his Tier III hearing constitute substantial evidence supporting the determination of guilt (see, Matter of Foster v Coughlin, 76 NY2d 964, 966 ; Matter of Malloy v Coughlin, 187 AD2d 1038 ). “[P]etitioner’s exculpatory explanation [regarding the incident] merely presented a credibility question for the Hearing Officer to resolve” (Matter of Islar v Coombe, 226 AD2d 851 ; see, Matter of Dotson v Coughlin, 191 AD2d 912, 913 , lv denied 82 NY2d 651 ).

2017Rather, the record establishes that petitioner asked to consult with his attorney after the tier III hearing commenced, and it is well established that an inmate does not have a right to counsel at that hearing (see Wolff v McDonnell, 418 US 539, 570 [1974]; Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990]).

2017Rather, the record establishes that petitioner asked to consult with his attorney after the tier III hearing commenced, and it is well established that an inmate does not have a right to counsel at that hearing (see Wolff v McDonnell, 418 US 539, 570 [1974]; Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990]).

2016Petitioner pleaded guilty to violating inmate rule 180.10, and therefore his contention that the determination with respect to that inmate rule is not supported by substantial evidence is without merit (see Matter of Liner v Fischer, 96 AD3d 1416, 1417 [2012]).

2016Petitioner pleaded guilty to violating inmate rule 180.10, and therefore his contention that the determination with respect to that inmate rule is not supported by substantial evidence is without merit (see Matter of Liner v Fischer, 96 AD3d 1416, 1417 [2012]).

2016Petitioner was charged with the rule violation in a misbehavior report alleging that, while confined in a state correctional facility, he was convicted of violating the federal Racketeer Influenced and Corrupt Organizations Act ([RICO] 18 USC § 1961 et seq.), specifically, that he conducted an enterprise engaged in a pattern of racketeering activity that affected interstate commerce (see 18 USC § 1962 [c], [d]; Salinas v United States, 522 US 52, 62 [1997]).

2016Petitioner was charged with the rule violation in a misbehavior report alleging that, while confined in a state correctional facility, he was convicted of violating the federal Racketeer Influenced and Corrupt Organizations Act ([RICO] 18 USC § 1961 et seq.), specifically, that he conducted an enterprise engaged in a pattern of racketeering activity that affected interstate commerce (see 18 USC § 1962 [c], [d]; Salinas v United States, 522 US 52, 62 [1997]).

2015Contrary to the contention of petitioner, we conclude that Supreme Court properly transferred the entire proceeding to this Court inasmuch as the “petition raises a substantial evidence question, and the remaining points made by petitioner are not objections that could have terminated the proceeding within the meaning of CPLR 7804 (g)” (Matter of Quintana v City of Buffalo, 114 AD3d 1222, 1223 [2014], lv denied 23 NY3d 902 [2014]).

2015Contrary to the contention of petitioner, we conclude that Supreme Court properly transferred the entire proceeding to this Court inasmuch as the “petition raises a substantial evidence question, and the remaining points made by petitioner are not objections that could have terminated the proceeding within the meaning of CPLR 7804 (g)” (Matter of Quintana v City of Buffalo, 114 AD3d 1222, 1223 [2014], lv denied 23 NY3d 902 [2014]).

2018The pertinent regulation provides that refusing to obey a direct order may be designated as either a tier I, II or III violation ( see 7 NYCRR 270.2 [7] [i]; see generally Matter of Pettus v New York State Dept. of Correctional Servs. , 73 AD3d 1411, 1412 [2010]; Matter of Kalwasinski v Goord , 25 AD3d 1050, 1051 [2006]), and "it is the function of the review officer, based upon the seriousness of the charges and the appropriate corresponding penalty in the event the charges are substantiated, to determine the tier classification" ( Matter of Pettus v Selsky , 28 AD3d 1043, 1043-1044 [2006]; s

2016Further, the Hearing Officer correctly determined that testimony of the reviewing officer who classified this as a tier III violation, who had no personal knowledge regarding this matter, and the documentation of his reasons for the classification were not relevant to the determination of whether petitioner possessed a weapon (see 7 NYCRR 251-2.2 [b]; Matter of Pettus v Selsky, 28 AD3d 1043, 1043-1044 [2006]).

2014As for petitioner’s assertion that the Hearing Officer who presided over the tier III hearing predetermined his guilt, we find no indication of bias or that the determination flowed from any alleged bias (see Matter of Bridgeforth v Fischer, 69 AD3d 1068, 1069 [2010]; Matter of Moss v Goord, 36 AD3d 977, 978 [2007]).

2014As for petitioner’s assertion that the Hearing Officer who presided over the tier III hearing predetermined his guilt, we find no indication of bias or that the determination flowed from any alleged bias (see Matter of Bridgeforth v Fischer, 69 AD3d 1068, 1069 [2010]; Matter of Moss v Goord, 36 AD3d 977, 978 [2007]).

2014However, petitioner’s claims that he was improperly denied documentary evidence or witnesses at the tier III hearing were not raised either at the hearing or on administrative appeal and, therefore, they have been waived (see Matter of Ayala v Fischer, 94 AD3d 1319, 1320 [2012]).

2014However, petitioner’s claims that he was improperly denied documentary evidence or witnesses at the tier III hearing were not raised either at the hearing or on administrative appeal and, therefore, they have been waived (see Matter of Ayala v Fischer, 94 AD3d 1319, 1320 [2012]).

2014As for petitioner’s assertion that the Hearing Officer who presided over the tier III hearing predetermined his guilt, we find no indication of bias or that the determination flowed from any alleged bias (see Matter of Bridgeforth v Fischer, 69 AD3d 1068, 1069 [2010]; Matter of Moss v Goord, 36 AD3d 977, 978 [2007]).

2014As for petitioner’s assertion that the Hearing Officer who presided over the tier III hearing predetermined his guilt, we find no indication of bias or that the determination flowed from any alleged bias (see Matter of Bridgeforth v Fischer, 69 AD3d 1068, 1069 [2010]; Matter of Moss v Goord, 36 AD3d 977, 978 [2007]).

2013Although the Board considered defendant’s disciplinary record to be “acceptable,” County Court is not bound by the Board’s recommendation on this factor (see People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]; People v Arotin, 19 AD3d 845, 847 [2005]; Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000]).

2013Although the Board considered defendant’s disciplinary record to be “acceptable,” County Court is not bound by the Board’s recommendation on this factor (see People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]; People v Arotin, 19 AD3d 845, 847 [2005]; Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000]).

2013The case summary, which constitutes reliable hearsay (see Correction Law § 168-n [3]; People v McFall, 93 AD3d 962, 963 [2012]; People v Hammer, 82 AD3d 1456, 1457 [2011]), reveals that defendant incurred seven tier II violations as well as a tier III violation concerning drug use that resulted in 60 days of keeplock confinement.

2013The case summary, which constitutes reliable hearsay (see Correction Law § 168-n [3]; People v McFall, 93 AD3d 962, 963 [2012]; People v Hammer, 82 AD3d 1456, 1457 [2011]), reveals that defendant incurred seven tier II violations as well as a tier III violation concerning drug use that resulted in 60 days of keeplock confinement.

2013The case summary, which constitutes reliable hearsay (see Correction Law § 168-n [3]; People v McFall, 93 AD3d 962, 963 [2012]; People v Hammer, 82 AD3d 1456, 1457 [2011]), reveals that defendant incurred seven tier II violations as well as a tier III violation concerning drug use that resulted in 60 days of keeplock confinement.

2013The case summary, which constitutes reliable hearsay (see Correction Law § 168-n [3]; People v McFall, 93 AD3d 962, 963 [2012]; People v Hammer, 82 AD3d 1456, 1457 [2011]), reveals that defendant incurred seven tier II violations as well as a tier III violation concerning drug use that resulted in 60 days of keeplock confinement.

2013Although the Board considered defendant’s disciplinary record to be “acceptable,” County Court is not bound by the Board’s recommendation on this factor (see People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]; People v Arotin, 19 AD3d 845, 847 [2005]; Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000]).

2013Although the Board considered defendant’s disciplinary record to be “acceptable,” County Court is not bound by the Board’s recommendation on this factor (see People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]; People v Arotin, 19 AD3d 845, 847 [2005]; Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000]).

2013Although petitioner contends that his request at the tier III hearing for, among other things, a copy of the documentation and procedures used in the Albany Central Office for selecting inmates for random urinalysis tests was improperly denied, under the circumstances, we find no basis to disturb the ruling that such information — including any information specifically pertaining to him — was unavailable to inmates (see Matter of Weatherly v Goord, 268 AD2d 642, 643 [2000]). * Finally, petitioner’s “request for declaratory relief ... is not authorized by CPLR 7804 (g)” (Nunez v La Valley, 95 A

2013Although petitioner contends that his request at the tier III hearing for, among other things, a copy of the documentation and procedures used in the Albany Central Office for selecting inmates for random urinalysis tests was improperly denied, under the circumstances, we find no basis to disturb the ruling that such information — including any information specifically pertaining to him — was unavailable to inmates (see Matter of Weatherly v Goord, 268 AD2d 642, 643 [2000]). * Finally, petitioner’s “request for declaratory relief ... is not authorized by CPLR 7804 (g)” (Nunez v La Valley, 95 A

2013Although the Board considered defendant’s disciplinary record to be “acceptable,” County Court is not bound by the Board’s recommendation on this factor (see People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]; People v Arotin, 19 AD3d 845, 847 [2005]; Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000]).

2013Although the Board considered defendant’s disciplinary record to be “acceptable,” County Court is not bound by the Board’s recommendation on this factor (see People v Legall, 63 AD3d 1305, 1306 [2009], lv denied 13 NY3d 706 [2009]; People v Arotin, 19 AD3d 845, 847 [2005]; Matter of VanDover v Czajka, 276 AD2d 945, 946 [2000]).

2012Petitioner failed to exhaust his administrative remedies with respect to his contention that respondent improperly intercepted letters addressed to him inasmuch as he failed to raise that contention at his Tier III hearing, “and this Court has no discretionary authority to reach that contention” (Matter of Fuentes v Fischer, 89 AD3d 1468 ; see Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 , appeal dismissed 81 NY2d 834 ).

2011Petitioner failed to exhaust his administrative remedies with respect to his sole remaining contention, i.e., that his due process rights were violated when he was penalized for attempting to mail certain documents to his home, having failed to raise that contention at the tier III hearing, and this Court has no discretionary authority to reach that contention (see Matter of Nelson v Coughlin, 188 AD2d 1071 [1992], appeal dismissed 81 NY2d 834 [1992]).

2012Petitioner failed to exhaust his administrative remedies with respect to his contention that respondent improperly intercepted letters addressed to him inasmuch as he failed to raise that contention at his Tier III hearing, “and this Court has no discretionary authority to reach that contention” (Matter of Fuentes v Fischer, 89 AD3d 1468 ; see Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 , appeal dismissed 81 NY2d 834 ).

2011Petitioner failed to exhaust his administrative remedies with respect to his sole remaining contention, i.e., that his due process rights were violated when he was penalized for attempting to mail certain documents to his home, having failed to raise that contention at the tier III hearing, and this Court has no discretionary authority to reach that contention (see Matter of Nelson v Coughlin, 188 AD2d 1071 [1992], appeal dismissed 81 NY2d 834 [1992]).

2018That assessment was based upon "a recent determination following a tier III hearing that was set forth in the case summary and that defendant [does not dispute] had been entered against him" ( People v Ealy , 55 AD3d 1313, 1314 [4th Dept 2008], lv denied 11 NY3d 714 [2008]; see People v Williams , 100 AD3d 610 , 610-611 [2d Dept 2012], lv denied 20 NY3d 859 [2013]; People v Mabee , 69 AD3d 820, 820-821 [2d Dept 2010], lv denied 15 NY3d 703 [2010]).

2015Thus, we find that defendant was properly assessed points under this risk factor (see People v Correnti, 126 AD3d 681, 681 [2015]; People v Williams, 100 AD3d 610 , 611 [2012], lv denied 20 NY3d 859 [2013]; People v Thomas, 59 AD3d 783, 785 [2009]; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006]).

2017Contrary to petitioner’s contention, the testimony and evidence presented at the hearing, including the positive results of two urinalysis tests indicating the presence of opiates, constitute substantial evidence to support the determination (see Matter of Lahey v Kelly, 71 NY2d 135, 138 [1987]).

2000The positive results of two urinalysis tests indicating the presence of marihuana provide substantial evidence to support the determination of the Hearing Officer (see, Matter of Lahey v Kelly, 71 NY2d 135, 138 ; Matter of Montalalou v Coombe, 242 AD2d 917 , lv denied 91 NY2d 805 ).