Opinion
729 CA 18–01651
06-14-2019
In the Matter of Ronald D. PLAZA, 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 (ADAM W. KOCH OF COUNSEL), FOR PETITIONER–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT–RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt 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 a determination, following a tier II disciplinary hearing, that he violated inmate rules 106.10 ( 7 NYCRR 270.2 [B][7][i] [refusal to obey a direct order] ) and 107.10 ( 7 NYCRR 270.2 [B][8][i] [interference with an employee] ). Petitioner contends that the Hearing Officer, who found him not guilty of three of the five charges set forth in the misbehavior report, was biased and that the outcome of the disciplinary proceeding flowed from such bias. Petitioner failed to exhaust his administrative remedies with respect to that contention inasmuch as he failed to raise it in his administrative appeal (see Matter of Viera v. Annucci , 170 A.D.3d 1645, 1646, 94 N.Y.S.3d 904 [4th Dept. 2019] ). Petitioner also failed to exhaust his administrative remedies with respect to his contention that he was improperly subjected to the discipline process because he was trying to effect a change in prison policy regarding the inmate telephone program (see Correction Law § 138[4] ) inasmuch as he failed to raise that particular contention at his tier II disciplinary hearing or in his administrative appeal (see Viera, 170 A.D.3d at 1646 ; Matter of McFadden v. Prack , 93 A.D.3d 1268, 1269, 940 N.Y.S.2d 744 [4th Dept. 2012] ). "[T]his Court has no discretionary authority to reach [those] contention[s]" ( McFadden, 93 A.D.3d at 1269, 940 N.Y.S.2d 744 [internal quotation marks omitted] ).