IN RE: Roberto RIVERA

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

IN RE: Roberto RIVERA, Appellant, v. John H. NUTTALL, as Deputy Commissioner of Program Services, Respondent.

Decided: June 22, 2006

Before:  CREW III, J.P., PETERS, CARPINELLO, MUGGLIN and ROSE, JJ. Roberto Rivera, Marcy, appellant pro se. Eliot Spitzer, Attorney General, Albany (Wayne L. Benjamin of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered May 23, 2005 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's grievance.

Petitioner, an inmate, wrote to respondent in March 2003 requesting that he be credited with having completed the Alcohol and Substance Abuse Treatment (hereinafter ASAT) program.   By letter dated April 14, 2003, respondent advised petitioner that, due to his removal from the program following an August 1996 disciplinary infraction while at one correctional facility, and his unsatisfactory program termination in May 2002 and subsequent program discharge in October 2002 while at another correctional facility, he would not be granted a certificate of completion for the ASAT program.   Respondent reiterated this denial in letters dated August 25, 2004 and November 15, 2004.   Petitioner then commenced this CPLR article 78 proceeding challenging respondent's November 15, 2004 determination.   Thereafter, he filed a grievance concerning the matter, which was denied by the Central Office Review Committee in February 2005.   Following service of respondent's answer in the CPLR article 78 proceeding, Supreme Court dismissed the petition and this appeal ensued.

 We affirm.   Initially, we note that petitioner commenced this proceeding before availing himself of the grievance procedure.   As he failed to exhaust his administrative remedies, the petition should have been dismissed on this basis (see Matter of Chaney v. Van Guilder, 14 A.D.3d 739, 740, 788 N.Y.S.2d 227 [2005];  Matter of West v. McGinnis, 4 A.D.3d 654, 655, 771 N.Y.S.2d 745 [2004] ).   Nevertheless, were we to address the merits, we would find that the determination denying petitioner a certificate of completion for the ASAT program was not irrational, arbitrary or capricious based upon our review of the record before us (see Matter of LaRocco v. Goord, 19 A.D.3d 1073, 796 N.Y.S.2d 268 [2005] ).

ORDERED that the judgment is affirmed, without costs.

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