tier III disciplinary hearing in New York

2024Contrary to petitioner's contention, the misbehavior report and testimony at the hearing constitute substantial evidence to support the determination that he violated that rule by possessing cellophane ( see generally Matter of Foster v Coughlin , 76 NY2d 964, 966 [1990]; Matter of Livingston v Annucci , 222 AD3d 1391, 1392 [4th Dept 2023]).

2023Contrary to petitioner's contention, the misbehavior report, "to/from memorandum," and testimony at the hearing constitute substantial evidence to support the determination that he violated those rules ( see generally Matter of Foster v Coughlin , 76 NY2d 964, 966 [1990]; Matter of Edwards v Annucci , 199 AD3d 1433 , 1433 [4th Dept 2021]).

2025See People v. Williams , 100 AD3d 610, 611 (2nd Dept. 2012)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed that he recently committed a Tier III disciplinary violation."); People v. Mabee , 69 AD3d 820, 821 (2nd Dept. 2010)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed his recent commission of a Tier III disciplinary violation.").

2025See People v. Williams , 100 AD3d 610, 611 (2nd Dept. 2012)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed that he recently committed a Tier III disciplinary violation."); People v. Mabee , 69 AD3d 820, 821 (2nd Dept. 2010)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed his recent commission of a Tier III disciplinary violation.").

2014Petitioner failed to exhaust his administrative remedies with respect to his claim that he was denied his request for a witness, and this Court has no discretionary authority to reach that claim (see Matter of Stewart v Fischer, 109 AD3d 1122, 1123 [2013], lv denied 22 NY3d 858 [2013]).

2014Petitioner failed to exhaust his administrative remedies with respect to his claim that he was denied his request for a witness, and this Court has no discretionary authority to reach that claim (see Matter of Stewart v Fischer, 109 AD3d 1122, 1123 [2013], lv denied 22 NY3d 858 [2013]).

2025See People v. Williams , 100 AD3d 610, 611 (2nd Dept. 2012)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed that he recently committed a Tier III disciplinary violation."); People v. Mabee , 69 AD3d 820, 821 (2nd Dept. 2010)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed his recent commission of a Tier III disciplinary violation.").

2025See People v. Williams , 100 AD3d 610, 611 (2nd Dept. 2012)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed that he recently committed a Tier III disciplinary violation."); People v. Mabee , 69 AD3d 820, 821 (2nd Dept. 2010)("The defendant's unsatisfactory conduct during his incarceration was established by the case summary, which revealed his recent commission of a Tier III disciplinary violation.").

2017Contrary to petitioner’s contention, the determination is supported by substantial evidence, including the misbehavior report and the testimony of the correction officer who wrote it (see Matter of Medina v Fischer, 137 AD3d 1584, 1585 [4th Dept 2016]; Matter of Spears v Fischer, 103 AD3d 1135, 1135-1136 [4th Dept 2013]; see generally People ex rel.

2015Although we conclude that the determination is supported by substantial evidence (see Matter of Spears v Fischer, 103 AD3d 1135, 1136 [2013]), respondent correctly concedes that the determination must be annulled and remitted for a new hearing.

2014Although petitioner was initially found guilty of the infractions following a tier III disciplinary hearing, this Court annulled that determination and remitted the matter for a rehearing (see Matter of Dickerson v Fischer, 105 AD3d 1232, 1232 [2013]).

2014Although petitioner was initially found guilty of the infractions following a tier III disciplinary hearing, this Court annulled that determination and remitted the matter for a rehearing (see Matter of Dickerson v Fischer, 105 AD3d 1232, 1232 [2013]).

2018The defendant's contention that a downward departure from his presumptive risk level designation should have been granted was never raised before the County Court and, thus, is unpreserved for appellate review ( see People v Gillotti , 23 NY3d 841 , 861 n 5; People v Moran , 148 AD3d 1189 ; People v Williams , 122 AD3d 1378 ).

2018A defendant seeking a downward departure from the presumptive risk level has the initial burden of "(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [Sex Offender Registration Act (hereinafter SORA)] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence" ( People v Wyatt, 89 AD3d 112, 128 ; see People v Gillotti, 23 NY3d 841, 861

2016Contrary to petitioner’s contention, the misbehavior report, together with the Unusual Incident Report, the Use of Force Report, the testimony of several correction officers who observed the incident, and the photograph of the ice pick that was recovered, “constitutes substantial evidence supporting the determination that petitioner violated [the] inmate rule[s]” at issue (Matter of Oliver v Fischer, 82 AD3d 1648, 1648 [2011]).

2016Contrary to petitioner’s contention, the misbehavior report, together with the Unusual Incident Report, the Use of Force Report, the testimony of several correction officers who observed the incident, and the photograph of the ice pick that was recovered, “constitutes substantial evidence supporting the determination that petitioner violated [the] inmate rule[s]” at issue (Matter of Oliver v Fischer, 82 AD3d 1648, 1648 [2011]).

2015To the extent that petitioner contends that the determination finding that he violated inmate rule 121.12 is not supported by substantial evidence, we note that his plea of guilty to that violation precludes our review of his contention (see Matter of Edwards v Fischer, 87 AD3d 1328, 1329 [2011]).

2015To the extent that petitioner contends that the determination finding that he violated inmate rule 121.12 is not supported by substantial evidence, we note that his plea of guilty to that violation precludes our review of his contention (see Matter of Edwards v Fischer, 87 AD3d 1328, 1329 [2011]).

2012We conclude that there is substantial evidence to support the determination with respect to inmate rule 113.20 inasmuch as petitioner pleaded guilty to the violation of that rule (see Matter of Holdip v Travis, 9 AD3d 825, 826 [2004]).

2012We conclude that there is substantial evidence to support the determination with respect to inmate rule 113.20 inasmuch as petitioner pleaded guilty to the violation of that rule (see Matter of Holdip v Travis, 9 AD3d 825, 826 [2004]).

2026Contrary to petitioner's contention, the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( Matter of Bottom v Annucci , 26 NY3d 983 , 984-985 [2015] [internal quotation marks omitted]; see Matter of Derby v Annucci , 227 AD3d 1413 , 1414 [4th Dept 2024]).

2026Contrary to petitioner's contention, the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( Matter of Bottom v Annucci , 26 NY3d 983 , 984-985 [2015] [internal quotation marks omitted]; see Matter of Derby v Annucci , 227 AD3d 1413 , 1414 [4th Dept 2024]).

2020To the extent that petitioner contends that the determination finding that he violated inmate rules 104.11 (7 NYCRR 270.2 [B] [5] [ii] [violent conduct]), 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]), and 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusing a direct order]) is not supported by substantial evidence, we note that his plea of guilty to those violations precludes our review of his contention ( see Matter of Ingram v Annucci , 151 AD3d 1778, 1778 [4th Dept 2017], lv denied 30 NY3d 904 [2017]; Matter of Williams v Annucci , 133 AD3d 1362, 1363 [4th Dept 2015]).

2019To the extent that petitioner contends that the determination finding that he violated inmate rules 104.11 (7 NYCRR 270.2 [B] [5] [ii] [violent conduct]), 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]), 100.13 (7 NYCRR 270.2 [B] [1] [iv] [fighting]), and 106.10 (7 NYCRR 270.2 [B] [7] [i] [direct order]) is not supported by substantial evidence, we note that his plea of guilty to those violations precludes our review of his contention ( see Matter of Ingram v Annucci , 151 AD3d 1778, 1778 [4th Dept 2017], lv denied 30 NY3d 904 [2017]; Matter of Williams v Annucci , 133 AD3d 1362,

2020To the extent that petitioner contends that the determination finding that he violated inmate rules 104.11 (7 NYCRR 270.2 [B] [5] [ii] [violent conduct]), 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]), and 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusing a direct order]) is not supported by substantial evidence, we note that his plea of guilty to those violations precludes our review of his contention ( see Matter of Ingram v Annucci , 151 AD3d 1778, 1778 [4th Dept 2017], lv denied 30 NY3d 904 [2017]; Matter of Williams v Annucci , 133 AD3d 1362, 1363 [4th Dept 2015]).

2019To the extent that petitioner contends that the determination finding that he violated inmate rules 104.11 (7 NYCRR 270.2 [B] [5] [ii] [violent conduct]), 104.13 (7 NYCRR 270.2 [B] [5] [iv] [creating a disturbance]), 100.13 (7 NYCRR 270.2 [B] [1] [iv] [fighting]), and 106.10 (7 NYCRR 270.2 [B] [7] [i] [direct order]) is not supported by substantial evidence, we note that his plea of guilty to those violations precludes our review of his contention ( see Matter of Ingram v Annucci , 151 AD3d 1778, 1778 [4th Dept 2017], lv denied 30 NY3d 904 [2017]; Matter of Williams v Annucci , 133 AD3d 1362,

2017Initially, we conclude that there is substantial evidence to support the determination with respect to inmate rule 113.15 (7 NYCRR 270.2 [B] [14] [v]), inasmuch as petitioner pleaded guilty to violating that rule (see Matter of Liner v Fischer, 96 AD3d 1416, 1417 [2012]).

2017We conclude that there is substantial evidence to support the determination inasmuch as petitioner pleaded guilty to the violation of that rule (see Matter of Liner v Fischer, 96 AD3d 1416, 1417 [2012]).

2013Although items providing the basis for both misbehavior reports were confiscated during the same search, we find that the doctrine of res judicata is inapplicable inasmuch as different conduct provided the factual bases for the respective disciplinary determinations (see Matter of Griffith v Selsky, 32 AD3d 595, 596 [2006]; Matter of Prout v Goord, 27 AD3d 812, 813 [2006]; compare Matter of Gustus v Fischer, 64 AD3d 1034, 1035 [2009]; Matter of Burgess v Goord, 285 AD2d 753, 754-755 [2001]).

2013Although items providing the basis for both misbehavior reports were confiscated during the same search, we find that the doctrine of res judicata is inapplicable inasmuch as different conduct provided the factual bases for the respective disciplinary determinations (see Matter of Griffith v Selsky, 32 AD3d 595, 596 [2006]; Matter of Prout v Goord, 27 AD3d 812, 813 [2006]; compare Matter of Gustus v Fischer, 64 AD3d 1034, 1035 [2009]; Matter of Burgess v Goord, 285 AD2d 753, 754-755 [2001]).

2013Initially, upon reviewing the record, we agree with petitioner, and respondent concedes, that substantial evidence does not support that part of the determination finding petitioner guilty of creating a disturbance (see Matter of Hood v Fischer, 100 AD3d 1122, 1123 [2012]; Matter of Pabon v Goord, 6 AD3d 833, 833-834 [2004]).

2013Initially, upon reviewing the record, we agree with petitioner, and respondent concedes, that substantial evidence does not support that part of the determination finding petitioner guilty of creating a disturbance (see Matter of Hood v Fischer, 100 AD3d 1122, 1123 [2012]; Matter of Pabon v Goord, 6 AD3d 833, 833-834 [2004]).

2013Initially, upon reviewing the record, we agree with petitioner, and respondent concedes, that substantial evidence does not support that part of the determination finding petitioner guilty of creating a disturbance (see Matter of Hood v Fischer, 100 AD3d 1122, 1123 [2012]; Matter of Pabon v Goord, 6 AD3d 833, 833-834 [2004]).

2013Initially, upon reviewing the record, we agree with petitioner, and respondent concedes, that substantial evidence does not support that part of the determination finding petitioner guilty of creating a disturbance (see Matter of Hood v Fischer, 100 AD3d 1122, 1123 [2012]; Matter of Pabon v Goord, 6 AD3d 833, 833-834 [2004]).

2013Although items providing the basis for both misbehavior reports were confiscated during the same search, we find that the doctrine of res judicata is inapplicable inasmuch as different conduct provided the factual bases for the respective disciplinary determinations (see Matter of Griffith v Selsky, 32 AD3d 595, 596 [2006]; Matter of Prout v Goord, 27 AD3d 812, 813 [2006]; compare Matter of Gustus v Fischer, 64 AD3d 1034, 1035 [2009]; Matter of Burgess v Goord, 285 AD2d 753, 754-755 [2001]).

2013Although items providing the basis for both misbehavior reports were confiscated during the same search, we find that the doctrine of res judicata is inapplicable inasmuch as different conduct provided the factual bases for the respective disciplinary determinations (see Matter of Griffith v Selsky, 32 AD3d 595, 596 [2006]; Matter of Prout v Goord, 27 AD3d 812, 813 [2006]; compare Matter of Gustus v Fischer, 64 AD3d 1034, 1035 [2009]; Matter of Burgess v Goord, 285 AD2d 753, 754-755 [2001]).

2013After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.- \ Initially, respondent concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of possessing an altered item and possessing contraband as charged in the second misbehavior report (see Matter of Croskery v LaValley, 93 AD3d 1055, 1055 [2012]; Matter of DeJesus v Prack, 93 AD3d 985, 985 [2012]).

2013After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.- \ Initially, respondent concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of possessing an altered item and possessing contraband as charged in the second misbehavior report (see Matter of Croskery v LaValley, 93 AD3d 1055, 1055 [2012]; Matter of DeJesus v Prack, 93 AD3d 985, 985 [2012]).

2013After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.- \ Initially, respondent concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of possessing an altered item and possessing contraband as charged in the second misbehavior report (see Matter of Croskery v LaValley, 93 AD3d 1055, 1055 [2012]; Matter of DeJesus v Prack, 93 AD3d 985, 985 [2012]).

2013After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.- \ Initially, respondent concedes, and we agree, that substantial evidence does not support that part of the determination finding petitioner guilty of possessing an altered item and possessing contraband as charged in the second misbehavior report (see Matter of Croskery v LaValley, 93 AD3d 1055, 1055 [2012]; Matter of DeJesus v Prack, 93 AD3d 985, 985 [2012]).

2026Contrary to petitioner's contention, the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( Matter of Bottom v Annucci , 26 NY3d 983 , 984-985 [2015] [internal quotation marks omitted]; see Matter of Derby v Annucci , 227 AD3d 1413 , 1414 [4th Dept 2024]).

2026Contrary to petitioner's contention, the determination is supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( Matter of Bottom v Annucci , 26 NY3d 983 , 984-985 [2015] [internal quotation marks omitted]; see Matter of Derby v Annucci , 227 AD3d 1413 , 1414 [4th Dept 2024]).

2018We also agree with the County Court's assessment of 10 points under risk factor 13, based on evidence of a recent Tier III disciplinary violation during the defendant's incarceration ( see Guidelines at 16; People v Williams , 100 AD3d 610, 611 ; People v Mabee , 69 AD3d 820 ; People v Ealy , 55 AD3d 1313 ).

2010The defendant’s unsatisfactory conduct during his incarceration was established by the case summary, which revealed his recent commission of a tier III disciplinary violation (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 16 [2006]; People v Ealy, 55 AD3d 1313, 1314 [2008]; People v Chabrier, 38 AD3d 355 [2007]).