Matter of Chisolm v. Annucci , 153 A.D.3d 1649 ( 2017 )

Matter of Chisolm v Annucci (2017 NY Slip Op 06731)

Matter of Chisolm v Annucci

2017 NY Slip Op 06731

Decided on September 29, 2017

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

941 TP 17-00420

[*1]IN THE MATTER OF PAUL J. CHISOLM, 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 (FRANK BRADY OF COUNSEL), FOR RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered February 28, 2017) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated various inmate rules.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

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. Initially, we conclude that there is substantial evidence to support the determination with respect to inmate rule 113.15 (7 NYCRR 270.2 [B] [14] [v]), inasmuch as petitioner pleaded guilty to violating that rule (see Matter of Liner v Fischer, 96 AD3d 1416, 1417). Petitioner failed to exhaust his administrative remedies with respect to his remaining contentions because he failed to raise those contentions in his administrative appeal, and this Court "has no discretionary power to reach" them (Matter of Nelson v Coughlin, 188 AD2d 1071, 1071, appeal dismissed 81 NY2d 834; see Matter of Polanco v Annucci, 136 AD3d 1325, 1325).

Entered: September 29, 2017

Mark W. Bennett

Clerk of the Court