Opinion
November 18, 1992
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, P.J., Green, Lawton, Fallon and Doerr, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Petitioner failed to raise on administrative appeal the contention that the Hearing Officer erred in refusing to review the videotape of the incident at the de novo disciplinary proceedings. Therefore, he has failed to exhaust his administrative remedies and the court has no discretionary power to reach this issue (see, Watergate II Apts. v Buffalo Sewer Auth., 46 N.Y.2d 52, 57; Young Men's Christian Assn. v Rochester Pure Waters Dist., 37 N.Y.2d 371, 375-376). Respondents now concede that the sanction was inappropriate, and consent to entry of an order modifying that aspect of the determination imposing confinement in the special housing unit from 36 months to 1080 days. The determination is modified accordingly.