Opinion
02-05-2016
In the Matter of Wilfredo POLANCO, 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 (Leah R. Nowotarski of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent–Respondent.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, after a tier II hearing, that he violated several inmate rules arising from his refusal to follow an order directing him to move to a different cell. We reject petitioner's contention that he was denied due process when the Hearing Officer did not allow him to call certain witnesses to testify at the hearing. Petitioner contended that the witnesses would support his contention that he had a valid reason for refusing to follow the correction officer's order that he move to a different cell. "It is well settled that petitioner, as a prison inmate, ‘was required to promptly obey the order even if he disagreed with it’ " (Matter of Bailey v. Prack, 125 A.D.3d 1028, 1028, 999 N.Y.S.2d 767 ; see Matter of Miller v. Goord, 2 A.D.3d 928, 930, 767 N.Y.S.2d 704 ). Inasmuch as the proposed witnesses had no information regarding whether petitioner refused to obey an order, their testimony was properly excluded based on "their lack of direct knowledge of the facts giving rise to this proceeding" (Matter of Nijman v. Goord, 294 A.D.2d 737, 738, 744 N.Y.S.2d 51 ; see Miller, 2 A.D.3d at 930, 767 N.Y.S.2d 704 ). Finally, petitioner failed to exhaust his administrative remedies with respect to his contention that the Hearing Officer was biased against him because he failed to raise it in his administrative appeal, and this Court "has no discretionary power to reach [it]" (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 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, CENTRA, CARNI, and SCUDDER, JJ., concur.