Opinion
576 TP 19-00050
08-22-2019
In the Matter of Michael HENDERSON, 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 (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said proceeding with respect to the determination dated January 2, 2018 is unanimously dismissed, and the determination dated January 25, 2018, as modified by an administrative order dated March 6, 2018, is confirmed without costs and the petition with respect to that determination is dismissed. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations, following two separate tier III hearings, that he violated certain inmate rules. After petitioner commenced this proceeding, respondent issued an administrative order reversing the first determination, dated January 2, 2018, and directing that all references to the subject disciplinary proceeding be expunged from petitioner's record. We therefore conclude that the proceeding insofar as it relates to the first determination should be dismissed as moot (see Matter of Free v. Coombe , 234 A.D.2d 996, 996, 652 N.Y.S.2d 190 [4th Dept. 1986] ).
Contrary to petitioner's contention, the second determination, dated January 25, 2018, which as modified by an administrative order dated March 6, 2018, found that he violated inmate rules 180.11 ( 7 NYCRR 270.2 [B][26][ii] [facility correspondence violation] ) and 107.11 ( 7 NYCRR 270.2 [B][8][ii] [harassment] ), is supported by substantial evidence (see Matter of Foster v. Coughlin , 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ; People ex rel. Vega v. Smith , 66 N.Y.2d 130, 139–140, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985] ). Petitioner's contention that the charges were brought against him in retaliation for grievances he filed merely presented an issue of credibility that the Hearing Officer was entitled to resolve against him (see Foster , 76 N.Y.2d at 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ; Matter of Britt v. Evans , 100 A.D.3d 1408, 1409, 953 N.Y.S.2d 766 [4th Dept. 2012] ; Matter of Bramble v. Mead , 242 A.D.2d 858, 858–859, 662 N.Y.S.2d 960 [4th Dept. 1997], lv. denied 91 N.Y.2d 803, 668 N.Y.S.2d 558, 691 N.E.2d 630 [1997] ). Petitioner's remaining contention is not preserved because it was not raised at the tier III hearing (see Matter of Reeves v. Goord , 248 A.D.2d 994, 995, 670 N.Y.S.2d 151 [4th Dept. 1998], lv. denied 92 N.Y.2d 804, 677 N.Y.S.2d 779, 700 N.E.2d 318 [1998] ). Moreover, petitioner failed to exhaust his administrative remedies with respect to that contention because he failed to raise it in his administrative appeal, " ‘and th[is C]ourt has no discretionary [authority] to reach [it]’ " ( Britt , 100 A.D.3d at 1409, 953 N.Y.S.2d 766 ).