BRITTO, NELSON v. FISCHER, BRIAN

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

671 CA 13-00359 PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.

IN THE MATTER OF NELSON BRITTO, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 28, 2013 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

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, following a tier III disciplinary hearing, that he violated inmate rules 113.10 (7 NYCRR 270.2 [B] [14] [i] [weapon possession]) and 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]). Petitioner failed to exhaust his administrative remedies with respect to his claim that he was denied his request for a witness, and this Court has no discretionary authority to reach that claim (see Matter of Stewart v Fischer, 109 AD3d 1122, 1123, lv denied 22 NY3d 858).

Entered: June 20, 2014 Frances E. Cafarell Clerk of the Court