IN RE: BRANDON EVANS (2024)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: BRANDON EVANS, PETITIONER-APPELLANT, v. ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

110 Decided: March 22, 2024

PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND GREENWOOD, JJ.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KEVIN C. HU OF COUNSEL), FOR RESPONDENT-RESPONDENT.

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 the determination, following a tier III disciplinary hearing, that he violated incarcerated individual rule 113.10 (7 NYCRR 270.2 [B] [14] [i] [weapon]). Supreme Court dismissed the petition, and we affirm.

Petitioner failed to raise in his administrative appeal his contention that the Hearing Officer relied on evidence outside the record in rendering a decision. Petitioner thus failed to exhaust his administrative remedies with respect to that contention, and this Court lacks the discretionary authority to consider it (see Matter of Pierre v Annucci, 181 AD3d 1179, 1180 [4th Dept 2020]; Matter of Plaza v Annucci, 173 AD3d 1778, 1778-1779 [4th Dept 2019]). Contrary to petitioner's further contention, the record does not support his claim that the Hearing Officer failed to electronically record the entire hearing (see Matter of Olukotun-Williams v Gardner, 221 AD3d 1164, 1165 [3d Dept 2023]; Matter of Barnes v Annucci, 185 AD3d 1367, 1367 [3d Dept 2020]).

Entered: March 22, 2024

Ann Dillon Flynn

Clerk of the Court

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