Opinion
332 TP 18–02024
03-22-2019
In the Matter of Terell VIERA, Jr., Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ROBYN P. RYAN OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (ROBYN P. RYAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination is unanimously confirmed without costs and the amended petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, following a tier II disciplinary hearing, that he violated inmate rule 116.13 ( 7 NYCRR 270.2 [B][17][iv] [possession of stolen property] ). Contrary to petitioner's contention, the misbehavior report, the testimony of the author of that report, and the photograph of the property constitute substantial evidence to support the determination that he violated that inmate rule (see Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ). Petitioner failed to exhaust his administrative remedies with respect to his contention that he was denied employee assistance, inasmuch as he failed to raise that contention in his administrative appeal, " ‘and this Court has no discretionary authority to reach that contention’ " ( Matter of McFadden v. Prack , 93 A.D.3d 1268, 1269, 940 N.Y.S.2d 744 [4th Dept. 2012] ; see Matter of Stewart v. Fischer , 109 A.D.3d 1122, 1123, 971 N.Y.S.2d 618 [4th Dept. 2013], lv denied 22 N.Y.3d 858, 2013 WL 6598719 [2013] ; Matter of Nelson v. Coughlin , 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670 [4th Dept. 1992], appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297 [1993] ).