Matter of Britto v Fischer

Matter of Matter of Britto v Fischer 2014 NY Slip Op 04640 Decided on June 20, 2014 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 June 20, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.
671 CA 13-00359

[*1]IN THE MATTER OF NELSON BRITTO, PETITIONER-APPELLANT,

v

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 28, 2013 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF COUNSEL), FOR RESPONDENT-RESPONDENT.

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 the determination, following a tier III disciplinary hearing, that he violated inmate rules 113.10 (7 NYCRR 270.2 [B] [14] [i] [weapon possession]) and 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]). Petitioner failed to exhaust his administrative remedies with respect to his claim that he was denied his request for a witness, and this Court has no discretionary authority to reach that claim (see Matter of Stewart v Fischer, 109 AD3d 1122, 1123, lv denied 22 NY3d 858).

Entered: June 20, 2014

Frances E. Cafarell

Clerk of the Court