Opinion
No. 110 CA 23-00929
03-22-2024
IN THE MATTER OF BRANDON EVANS, PETITIONER-APPELLANT, v. ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND GREENWOOD, JJ.
Appeal from a judgment of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered May 10, 2023, 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 incarcerated individual rule 113.10 (7 NYCRR 270.2 [B] [14] [i] [weapon]). Supreme Court dismissed the petition, and we affirm.
Petitioner failed to raise in his administrative appeal his contention that the Hearing Officer relied on evidence outside the record in rendering a decision. Petitioner thus failed to exhaust his administrative remedies with respect to that contention, and this Court lacks the discretionary authority to consider it (see Matter of Pierre v Annucci, 181 A.D.3d 1179, 1180 [4th Dept 2020]; Matter of Plaza v Annucci, 173 A.D.3d 1778, 1778-1779 [4th Dept 2019]). Contrary to petitioner's further contention, the record does not support his claim that the Hearing Officer failed to electronically record the entire hearing (see Matter of Olukotun-Williams v Gardner, 221 A.D.3d 1164, 1165 [3d Dept 2023]; Matter of Barnes v Annucci, 185 A.D.3d 1367, 1367 [3d Dept 2020]).