Opinion
11-10-2016
In the Matter of Devin GRAY, 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. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent.
PRESENT: CARNI, J.P., DeJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
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. Petitioner contends that substantial evidence does not support the determination that he violated inmate rule 106.10 (7 NYCRR 270.2 [B][7][i] [refusal to obey a direct order] ). We reject that contention. The testimony of multiple correction officers who witnessed the incident, along with the documentary evidence considered by the Hearing Officer, “constitutes substantial evidence supporting the determination that petitioner violated [that] inmate rule” (Matter of Oliver v. Fischer, 82 A.D.3d 1648, 1648, 919 N.Y.S.2d 432 ; see Matter of Jones v. Annucci, 141 A.D.3d 1108, 1108–1109, 33 N.Y.S.3d 807 ). Petitioner's testimony that he complied with all direct orders merely raised an issue of credibility for the Hearing Officer (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 ).
Petitioner failed to exhaust his administrative remedies with respect to his remaining contentions, and thus this Court “has no discretionary power to reach” them (Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297 ; see Jones, 141 A.D.3d at 1109, 33 N.Y.S.3d 807).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.