IN RE: JUNIOR WILSON (2015)

Supreme Court, Appellate Division, Fourth Department.

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

CA 13–01587

Decided: January 02, 2015

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.

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.

MEMORANDUM AND ORDER

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 A.D.2d 1071, 1071, appeal dismissed 81 N.Y.2d 834).

Frances E. Cafarell

Clerk of the Court

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