Matter of Wilson v Fischer

Matter of Wilson v Fischer 2015 NY Slip Op 00178 Decided on January 2, 2015 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 January 2, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
1462 CA 13-01587

[*1]IN THE MATTER OF JUNIOR WILSON, 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 August 2, 2013 in a CPLR article 78 proceeding. 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 (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT-RESPONDENT.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from a judgment dismissing his CPLR article 78 petition seeking to annul the determination after a tier III hearing that he violated inmate rule 113.24 (7 NYCRR 270.2 [B] [14] [xiv] [drug use]). Petitioner contends that his due process rights were violated because his urine sample was not tested immediately, and it therefore should have been refrigerated prior to testing. Petitioner failed to exhaust his administrative remedy with respect to that contention 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 AD2d 1071, 1071, appeal dismissed 81 NY2d 834).

Entered: January 2, 2015

Frances E. Cafarell

Clerk of the Court