GONZALEZ v. FISCHER

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Docket Number

No. 503589.

Attorney(S)

Romualdo Gonzalez, Auburn, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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Smart Summary

Factual and Procedural Background

Petitioner, a prison inmate, commenced a CPLR article 78 proceeding (transferred to this Court by order of the Supreme Court, entered in Albany County) challenging a tier III disciplinary determination that found him guilty of possession of a weapon. The misbehavior report and related documentation showed that a search of petitioner's cell recovered a round metal weapon sharpened to a point with a masking tape and cellophane handle. The Appellate Division reviewed the determination.

Legal Issues Presented

Whether the disciplinary determination was supported by substantial evidence.
Whether petitioner received adequate employee assistance.
Whether petitioner was denied the right to present witness testimony.

Arguments of the Parties

Petitioner's Arguments

Challenged the tier III disciplinary determination finding him guilty of possession of a weapon.
Asserted inadequate employee assistance.
Claimed he was denied the right to present witness testimony.

Respondent's Position

The determination is supported by the misbehavior report and related documentation reflecting recovery of the described weapon during a cell search.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Moxley v Selsky, 45 AD3d 1084, 1084	Support for treating recovered object as a weapon in a cell-search context.	Cited to uphold that the recovered round metal object, sharpened and fitted with a handle, constituted a weapon supporting the misconduct finding.
Matter of Boley Selsky, 50 AD3d 1411, 1412	Principle regarding adequacy of employee assistance and prejudice analysis.	Applied to conclude that petitioner's claim of inadequate employee assistance was not substantiated and showed no prejudice.

Court's Reasoning and Analysis

The court found the determination of guilt supported by substantial evidence, relying on the misbehavior report and related documentation that established the recovery during a cell search of a round metal weapon sharpened to a point with a masking tape and cellophane handle. Applying Matter of Moxley v Selsky, the court treated the recovered object as a weapon sufficient to support the finding. The court rejected petitioner's claim of inadequate employee assistance, noting the record did not substantiate the claim nor show prejudice, citing Matter of Boley Selsky. The court reviewed petitioner's remaining contentions, including the denial of the right to present witness testimony, and found them unpersuasive.

Holding and Implications

Adjudged that the determination is confirmed, without costs, and petition dismissed.

Direct consequences: the disciplinary determination finding petitioner guilty of possession of a weapon is upheld and the CPLR article 78 petition is dismissed with no costs awarded. The opinion does not announce or discuss any broader precedential changes beyond applying existing authorities cited above.

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In the Matter of ROMUALDO GONZALEZ, Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Ser

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of possession of a weapon. We now confirm.

The determination of guilt is supported by substantial evidence including the misbehavior report and related documentation, which established that a search of petitioner's cell recovered a round metal weapon that had been sharpened to a point and had a masking tape and cellophane handle ( See Matter of Moxley v Selsky, 45 AD3d 1084, 1084). Petitioner's claim of inadequate employee assistance is neither substantiated in the record nor is there any indication that he was prejudiced by any alleged deficiencies ( See Matter of Boley Selsky, 50 AD3d 1411, 1412). We have examined petitioner's remaining contentions, including his claim that he was denied the right to present witness testimony, and find them to be unpersuasive.

Adjudged that the determination is confirmed, without costs, and petition dismissed.