Opinion
196 CA 18–00726
03-13-2020
In the Matter of Victor K. THOMAS, Petitioner–Appellant, v. Tina M. STANFORD, Chairwoman, New York State Board of Parole and Thomas Kubiniec, Administrative Law Judge, Respondents–Respondents.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR PETITIONER–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (HEATHER MCKAY OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JANE I. YOON OF COUNSEL), FOR PETITIONER–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (HEATHER MCKAY OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.
PRESENT: WHALEN, P.J., CENTRA, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER 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 a determination revoking his release to parole supervision upon his plea of guilty to violating a condition of his parole that precluded him from "possess[ing] a smart phone, with internet, camera [and] video capabilities, without permission from his parole officer." The determination was affirmed on administrative appeal. Petitioner now appeals from a judgment dismissing the petition, and we affirm.
Petitioner contends that the subject parole condition violated his right to free speech. Petitioner never raised that contention on administrative appeal, and he therefore failed to exhaust his administrative remedies with respect to that contention (see Matter of Espinal v. Annucci , 173 A.D.3d 1850, 1851, 104 N.Y.S.3d 472 [4th Dept. 2019] ; see also Matter of Secore v. Mantello , 176 A.D.2d 1244, 1244, 576 N.Y.S.2d 473 [4th Dept. 1991] ; People ex rel. Cotton v. Rodriquez , 123 A.D.2d 338, 339, 506 N.Y.S.2d 350 [2d Dept. 1986] ). This Court has no discretionary authority to reach the contention (see Matter of Alvarez v. Fischer , 94 A.D.3d 1404, 1406, 942 N.Y.S.2d 711 [4th Dept. 2012] ; see generally Matter of Nelson v. Coughlin , 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670 [4th Dept. 1992], appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297 [1993] ). We have considered petitioner's remaining contention and conclude that it does not warrant modification or reversal of the judgment.