Opinion
05-05-2017
In the Matter of Jason PHILLIPS, 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. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:
Petitioner commenced this proceeding seeking to annul a determination finding him guilty, following a tier III hearing, of violating inmate rules 101.10 (7 NYCRR 270.2 [B][2][i] [engaging in sexual acts] ), 106.10 (7 NYCRR 270.2 [B][7][i] [refusing a direct order] ), and 180.10 (7 NYCRR 270.2 [B][26][i] [violating a visitation procedure] ). Petitioner appeals from a judgment dismissing the petition.
At the outset, with regard to petitioner's contention that Supreme Court erred in determining that the record of the administrative hearing was sufficient to permit meaningful judicial review even in the absence of a certain videotape that was misplaced following the hearing and determination, we note that the videotape has since been found by respondent and has been forwarded to us for our in camera review. This is thus not a case in which respondent has failed to provide a complete record of the administrative proceedings (see CPLR 7804[e] ), thereby precluding meaningful review of the determination and warranting a granting of the petition and an annulment of the determination (see generally Matter of Tolliver v. Fischer, 125 A.D.3d 1023, 1023–1024, 2 N.Y.S.3d 694, lv. denied 25 N.Y.3d 908, 2015 WL 2237591 ; Matter of Farrell v. New York State Off. of the Attorney Gen., 108 A.D.3d 801, 801–802, 968 N.Y.S.2d 253 ).
Contrary to petitioner's contention, the court did not err in concluding that the Hearing Officer was not biased against him and that the determination did not flow from such alleged bias (see Matter of Jones v. Annucci, 141 A.D.3d 1108, 1109, 33 N.Y.S.3d 807 ; Matter of Barnes v. Annucci, 140 A.D.3d 1779, 1779, 32 N.Y.S.3d 804 ; Matter of Colon v. Fischer, 83 A.D.3d 1500, 1501–1502, 921 N.Y.S.2d 441 ; see also Matter of Green v. Sticht, 124 A.D.3d 1338, 1339, 1 N.Y.S.3d 670, lv. denied 26 N.Y.3d 906, 2015 WL 5553451 ). Petitioner failed to exhaust his administrative remedies with regard to his contention that the Hearing Officer improperly excluded him from the hearing room, and we therefore have no discretionary power to reach that contention (see generally Matter of Gray v. Annucci, 144 A.D.3d 1613, 1614, 41 N.Y.S.3d 186 ; Matter of Sabino v. Hulihan, 105 A.D.3d 1426, 1426, 963 N.Y.S.2d 897 ; Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 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.