Opinion
2012-06-8
In the Matter of Alberto RODRIGUEZ, Petitioner, v. Brian FISCHER, Commissioner, New York State Department of Correctional Services, Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a Tier III disciplinary hearing, that he violated inmate rules 106.10 (7 NYCRR 270.2 [B][7][i] [refusal to obey a direct order] ), 118.30 (7 NYCRR 270.2[B][19] [viii] [cleanliness] ), 118.22 (7 NYCRR 270.2[B][19][iv] [unhygienic act] ) and 102.10 (7 NYCRR 270.2[B][3][i] [threats] ). Respondent correctly concedes that the determinationthat petitioner violated inmate rule 102.10 is not supported by substantialevidence. We therefore modify the determination and grant the petition in part by annulling that part of the determination finding that petitioner violated inmate rule 102.10 ( see Matter of Vasquez v. Goord, 284 A.D.2d 903, 903–904, 725 N.Y.S.2d 921), and we direct respondent to expunge from petitioner's institutional record all references to the violation of that inmate rule ( see generally Matter of Edwards v. Fischer, 87 A.D.3d 1328, 1330, 930 N.Y.S.2d 358). Inasmuch as it appears from the record that petitioner has already served his administrative penalty, the appropriate remedy is expungement of all references to the violation of that rule from his institutional record ( see Matter of Delgado v. Hurlburt, 279 A.D.2d 734, 735 n., 718 N.Y.S.2d 473). Further, because the penalty has been served and there was no recommended loss of good time, there is no need to remit the matter to respondent for reconsideration of the penalty ( see Matter of Maybanks v. Goord, 306 A.D.2d 839, 840, 761 N.Y.S.2d 566).
Petitioner failed to exhaust his administrative remedies with respect to his contentions that the Hearing Officer refused to investigate petitioner's claim of retaliation, failed to call a lieutenant as a witness and improperly limited his cross-examination of a sergeant, inasmuch as he failed to raise those issues in his administrative appeal, “ ‘and this Court has no discretionary authority to reach [those] contention[s]’ ” (Matter of McFadden v. Prack, 93 A.D.3d 1268, 1269, 940 N.Y.S.2d 744). Petitioner failed to preserve for our review his further contention that the Hearing Officer erred in denying his request for the videotape of the incident, inasmuch as he failed to raise that issue in his petition ( see Matter of Dawes v. McClellan, 225 A.D.2d 830, 831, 638 N.Y.S.2d 843).
Contrary to petitioner's contention, the determination that he violated the remaining inmate rules is supported by substantial evidence ( see generally People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997). We have reviewed petitioner's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the determination so appealed from is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding that petitioner violated inmate rule 102.10 (7 NYCRR 270.2[B][3][i] ) and as modified the determination is confirmed without costs and respondent is directed to expunge from petitioner's institutional record all references to the violation of that inmate rule.