Opinion
550 CA 19–01190
10-09-2020
In the Matter of Lawrence PEREZ, Petitioner-Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent-Respondent.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., TROUTMAN, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that denied his inmate grievance, in which he challenged respondent's determination that he must participate in a sex offender counseling and treatment program (SOCTP). Petitioner appeals from a judgment that dismissed the petition. We affirm.
During the proceedings in Supreme Court, petitioner did not challenge the inclusion of his presentence report (PSR) in the record submitted to the court, and thus he failed to preserve for our review his contention that the court erred in receiving and reviewing the PSR in making its determination (see generally Matter of Arrazola v. State Dept. of Motor Vehs., Appeals Bd. , 129 A.D.3d 1444, 1445, 12 N.Y.S.3d 680 [4th Dept. 2015] ; Matter of Brown v. Feehan , 125 A.D.3d 1499, 1502, 3 N.Y.S.3d 868 [4th Dept. 2015] ; Matter of Adams v. Superintendent Bollinier , 118 A.D.3d 1351, 1351, 986 N.Y.S.2d 903 [4th Dept. 2014] ). Petitioner's contention that he was unaware that the PSR had been submitted is belied by the answer, in which respondent stated that his determination should be affirmed based on, among other things, "a review of the petitioner's [PSR], which is a confidential report and submitted to the Court for in camera review." In any event, inasmuch as respondent was required to submit to the court the entire administrative record upon which he made the determination at issue (see Matter of Collins v. Behan , 285 N.Y. 187, 188, 33 N.E.2d 86 [1941] ; Matter of Tolliver v. Fischer , 125 A.D.3d 1023, 1023-1024, 2 N.Y.S.3d 694 [3d Dept. 2015], lv denied 25 N.Y.3d 908, 2015 WL 2237591 [2015] ; Matter of Gilbert v. Endres , 13 A.D.3d 1104, 1104, 787 N.Y.S.2d 554 [4th Dept. 2004] ), respondent was required to provide the court with the PSR and any other evidence upon which the determination was based, regardless of its confidential nature (see e.g. Matter of Watson v. Annucci , 173 A.D.3d 1606, 1606-1607, 99 N.Y.S.3d 913 [4th Dept. 2019] ; Matter of Cordova v. Annucci , 162 A.D.3d 1573, 1574, 79 N.Y.S.3d 431 [4th Dept. 2018] ).
Petitioner further contends that the court erred in dismissing the petition because petitioner was acquitted of the murder in the first degree count in the indictment that charged him with committing the specific acts upon which respondent relied in determining that he must participate in SOCTP, and therefore respondent must conclude that petitioner did not commit those acts. We disagree. "It is hornbook law that an acquittal in a criminal proceeding is not binding on an administrative agency because of the differences in the burden of proof and rules of evidence" ( Matter of Webster v. Van Lindt , 117 A.D.2d 555, 558, 499 N.Y.S.2d 63 [1st Dept. 1986] ; see People ex rel. Dowdy v. Smith , 48 N.Y.2d 477, 484, 423 N.Y.S.2d 862, 399 N.E.2d 894 [1979] ). Contrary to petitioner's further contention that respondent acted irrationally in imposing the SOCTP requirement, we conclude that, under the circumstances presented here, "it was rational both for respondent[ ] to refer petitioner to [SOCTP] and to deny his grievance in that regard" ( Matter of Harris v. Granger , 64 A.D.3d 837, 838, 882 N.Y.S.2d 545 [3d Dept. 2009], lv denied 13 N.Y.3d 710, 2009 WL 3428463 [2009] ; see Matter of Matos v. Goord , 27 A.D.3d 940, 941, 811 N.Y.S.2d 480 [3d Dept. 2006] ).
Petitioner further contends that respondent originally concluded that he did not require SOCTP, and therefore the subsequent imposition of that requirement under the same circumstances is arbitrary and capricious. We conclude that, because "petitioner did not properly raise this issue in his grievance and ... it was not administratively addressed, his failure to exhaust administrative remedies regarding this issue mandated dismissal of that portion of his petition" ( Matter of Clarke v. Senkowski , 255 A.D.2d 848, 849, 682 N.Y.S.2d 118 [3d Dept. 1998] ; see Matter of Henderson v Annucci , 175 A.D.3d 976, 977, 105 N.Y.S.3d 329 [4th Dept. 2019] ). Furthermore, petitioner failed to preserve that contention for our review because he failed to raise it in the petition (see Matter of Rodriguez v. Fischer , 96 A.D.3d 1374, 1375, 946 N.Y.S.2d 735 [4th Dept. 2012] ; see generally Matter of Blue Lawn v. County of Westchester , 293 A.D.2d 532, 534, 740 N.Y.S.2d 404 [2d Dept. 2002], lv denied 98 N.Y.2d 607, 746 N.Y.S.2d 691, 774 N.E.2d 756 [2002] ).