Opinion
2014-06-20
In the Matter of Nelson BRITTO, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 28, 2013 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition. Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of Counsel), for Respondent–Respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 28, 2013 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Jeffrey W. Lang of Counsel), for Respondent–Respondent.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rules 113.10 (7 NYCRR 270.2[B][14][i] [weapon possession] ) and 114.10 (7 NYCRR 270.2[B][15][i] [smuggling] ). Petitioner failed to exhaust his administrative remedieswith 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 A.D.3d 1122, 1123, 971 N.Y.S.2d 618,lv. denied22 N.Y.3d 858, 2013 WL 6598719).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, and DeJOSEPH, JJ., concur.