Matter of Mascorro v Annucci

Matter of Mascorro v Annucci 2014 NY Slip Op 08700 Decided on December 11, 2014 Appellate Division, Third 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 and Entered: December 11, 2014
518470

[*1]In the Matter of VICTOR MASCORRO, Appellant,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: October 21, 2014
Before: Garry, J.P., Rose, Egan Jr., Devine and Clark, JJ.

Victor Mascorro, Rome, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lynch, J.), entered January 29, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner is serving an aggregate prison term of 16 to 32 years upon his conviction of various crimes, including rape in the first degree. Petitioner commenced this CPLR article 78 proceeding challenging his removal from the Sex Offender Counseling and Treatment Program. Respondent moved to dismiss the petition for failure to exhaust administrative remedies. Supreme Court granted respondent's motion and this appeal ensued.

Petitioner was required to file a grievance challenging his removal from the treatment program (see Matter of Hawes v Fischer, 119 AD3d 1304, 1305 [2014]; Matter of Torres v Fischer, 73 AD3d 1355, 1356 [2010]). He admittedly did not avail himself of this procedure, and his letter of complaint to the Deputy Commissioner of Program Services at the Department of Corrections and Community Supervision did not remedy this defect (see Matter of Torres v Fischer, 73 AD3d at 1356; Matter of Muniz v David, 16 AD3d 939, 939-940 [2005]). Further, contrary to petitioner's contention, none of the exceptions to the exhaustion doctrine are applicable here (see Matter of Georgiou v Daniel, 21 AD3d 1230, 1231 [2005]). Accordingly, dismissal of the petition was appropriate.

Garry, J.P., Rose, Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.