Britto v. Fischer

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered January 28, 2013 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

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 [2013], lv denied 22 NY3d 858 [2013]).