Opinion
May 27, 1993
Appeal from the Supreme Court, Albany County (Hughes, J.).
After a Superintendent's hearing, petitioner was found guilty of smuggling and possession of a controlled substance. His administrative appeal was denied and he commenced this CPLR article 78 proceeding alleging that the Hearing Officer erred in refusing to call a witness he had requested. Petitioner claimed that the ruling violated the provisions of 7 NYCRR 254.5 and denied him his right to due process. Supreme Court dismissed the petition and this appeal followed.
We affirm. Initially, we agree with respondent that petitioner's failure to raise this issue on his administrative appeal precludes him from raising it in this proceeding (see, Matter of Bates v Coughlin, 145 A.D.2d 854, lv denied 74 N.Y.2d 602; Matter of McClean v LeFevre, 142 A.D.2d 911). Even where an issue has not been administratively raised, however, we have nevertheless considered issues of constitutional dimension in the interest of justice (cf., Matter of Bates v Coughlin, supra). Here, although petitioner claims that his due process rights were violated, we find no prejudice to petitioner that warrants a departure from the general rule requiring exhaustion of administrative remedies. Our review of the record discloses a sufficient basis for the Hearing Officer's determination that the requested testimony was irrelevant and would jeopardize institutional safety and correctional goals (see, 7 NYCRR 254.5 [a]; Matter of Irby v Kelly, 161 A.D.2d 860; Matter of Crowley v O'Keefe, 148 A.D.2d 816, appeal dismissed 74 N.Y.2d 780, lv denied 74 N.Y.2d 613). When petitioner made his request, he expressed only an interest in the witness's knowledge about the identity of an inmate who petitioner claimed must have informed on him. His present assertion that he sought the testimony to establish a defense of entrapment is belied by the record. Petitioner's remaining arguments have been considered and rejected as lacking in merit.
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.