Opinion
2011-11-10
In the Matter of Jose A. FUENTES, Petitioner–Appellant,v.Brian FISCHER, Commissioner, New York State Department of Correctional Services, Respondent–Respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered June 25, 2010 in a proceeding pursuant to CPLR article 78. The judgment denied the petition. Jose A. Fuentes, petitioner-appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for respondent-respondent.MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination after a Tier III hearing that he violated certain inmate rules. We note at the outset that, as respondent correctly contends, petitioner withdrew the substantial evidence issue when he appeared in Supreme Court, and the court thus was not required to transfer the proceeding to this Court to decide that issue ( see CPLR 7804[g] ), nor do we address it. Petitioner 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 A.D.2d 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
CENTRA, J.P., FAHEY, PERADOTTO, GREEN, and GORSKI, JJ., concur.