IN RE: NELSON BRITTO (2014)

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

IN RE: NELSON BRITTO, PETITIONER–APPELLANT, v. BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT–RESPONDENT.

CA 13–00359

Decided: June 20, 2014

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.

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.

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 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).

Frances E. Cafarell

Clerk of the Court

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