Weaken v. Deputy Superintendent Bish

2 A.D.3d 1361, 768 N.Y.S.2d 874, 2003 N.Y. App. Div. LEXIS 14336

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 2003
• Status: Published

Opinion

— CPLR article 78 petition transferred to this Court by an order of Supreme Court, Livingston County (Cicoria, J.), entered January 30, 2003, seeking to annul a determination after a Tier III hearing.

It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this proceeding seeking to annul a determination finding him guilty of violating various inmate rules and imposing a penalty of 180 days in the special housing unit with a concomitant loss of good time and privileges. “Because the petition did not raise a substantial evidence issue, Supreme Court erred in transferring the proceeding to this Court” (Matter of Nieves v Goord, 262 AD2d 1042, 1042 [1999]; see CPLR 7804 [g]; Matter of Ramos v Herbert, 256 AD2d 1191 [1998]). We nevertheless address the issues raised in the interest of judicial economy (see Nieves, 262 AD2d at 1042; Ramos, 256 AD2d at 1191). Although petitioner raises a substantial evidence issue in the brief presented to this Court and also contends therein that his plea was involuntary and that the Hearing Officer was biased, we are unable to address those issues because he failed to raise them on his administrative appeal and thus failed to exhaust his administrative remedies with respect to them (see Matter of White v Goord, 299 AD2d 870, 871 [2002]; Matter of Moore v Goord, 280 AD2d 905, 906 [2001]; Matter of Agosto v Goord, 261 AD2d 888 [1999]). Present—Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.