| Matter of Pierre v Annucci |
| 2020 NY Slip Op 01750 |
| Decided on March 13, 2020 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 13, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
157 CA 19-01267
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.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Appeal from a judgment of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered February 19, 2019 in a CPLR article 78 proceeding. 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 various inmate rules. Supreme Court dismissed the petition and confirmed the determination. Petitioner contends that the Hearing Officer failed to comply with 7 NYCRR 254.5 (b) inasmuch as the testimony of petitioner's requested witness was taken outside his presence (see Matter of Trapani v Annucci, 117 AD3d 1473, 1474 [4th Dept 2014]; Matter of Jones v Smith, 116 AD2d 993, 993 [4th Dept 1986]; cf. Matter of Janis v Prack, 106 AD3d 1297, 1297 [3d Dept 2013], lv denied 21 NY3d 864 [2013]). This Court has no discretionary power to reach that contention because petitioner failed to raise a challenge on that ground in his administrative appeal and therefore failed to exhaust his administrative remedies with respect thereto (see Matter of Nelson v Coughlin, 188 AD2d 1071, 1071 [4th Dept 1992], appeal dismissed 81 NY2d 834 [1993]; see also Matter of Godwin v Goord, 270 AD2d 881, 881 [4th Dept 2000]). We reject petitioner's further contention that the Hearing Officer was biased and that the determination flowed from the alleged bias (see Matter of Jones v Annucci, 141 AD3d 1108, 1109 [4th Dept 2016]).
Entered: March 13, 2020
Mark W. Bennett
Clerk of the Court