| Matter of Rodriguez v Fischer |
| 2012 NY Slip Op 04474 [96 AD3d 1374] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Alberto Rodriguez, Petitioner, v Brian Fischer,Commissioner, New York State Department of Correctional Services,Respondent. |
—[*1]
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of theSupreme Court in the Fourth Judicial Department by order of the Supreme Court, WyomingCounty [Mark H. Dadd, A.J.], entered August 30, 2011) to review a determination of respondent.The determination found after a tier III hearing that petitioner had violated various inmate rules.
It is hereby ordered that the determination so appealed from is unanimously modified on thelaw and the petition is granted in part by annulling that part of the determination finding thatpetitioner violated inmate rule 102.10 (7 NYCRR 270.2 [B] [3] [i]) and as modified thedetermination is confirmed without costs and respondent is directed to expunge from petitioner'sinstitutional record all references to the violation of that inmate rule.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul thedetermination, following a tier III disciplinary hearing, that he violated inmate rules 106.10 (7NYCRR 270.2 [B] [7] [i] [refusal to obey a direct order]), 118.30 (7 NYCRR 270.2 [B] [19][viii] [cleanliness]), 118.22 (7 NYCRR 270.2 [B] [19] [iv] [unhygienic act]) and 102.10 (7NYCRR 270.2 [B] [3] [i] [threats]). Respondent correctly concedes that the determination thatpetitioner violated inmate rule 102.10 is not supported by substantial evidence. We thereforemodify the determination and grant the petition in part by annulling that part of the determinationfinding that petitioner violated inmate rule 102.10 (see Matter of Vasquez v Goord, 284AD2d 903, 903-904 [2001]), and we direct respondent to expunge from petitioner's institutionalrecord all references to the violation of that inmate rule (see generally Matter of Edwards v Fischer, 87 AD3d 1328, 1330[2011]). Inasmuch as it appears from the record that petitioner has already served hisadministrative penalty, the appropriate remedy is expungement of all references to the violationof that rule from his institutional record (see Matter of Delgado v Hurlburt, 279 AD2d734, 735 n [2001]). Further, because the penalty has been served and there was no recommendedloss of good time, there is no need to remit the matter to respondent for reconsideration of thepenalty (see Matter of Maybanks v Goord, 306 AD2d 839, 840 [2003]).
Petitioner failed to exhaust his administrative remedies with respect to his contentions thatthe Hearing Officer refused to investigate petitioner's claim of retaliation, failed to call alieutenant as a witness and improperly limited his cross-examination of a sergeant, inasmuch as[*2]he failed to raise those issues in his administrative appeal, "'and this Court has no discretionary authority to reach [those] contention[s]' " (Matter of McFadden v Prack, 93 AD3d1268, 1269 [2012]). Petitioner failed to preserve for our review his further contention thatthe Hearing Officer erred in denying his request for the videotape of the incident, inasmuch as hefailed to raise that issue in his petition (see Matter of Dawes v McClellan, 225 AD2d830, 831 [1996]).
Contrary to petitioner's contention, the determination that he violated the remaining inmaterules is supported by substantial evidence (see generally People ex rel. Vega v Smith, 66NY2d 130, 139 [1985]). We have reviewed petitioner's remaining contentions and conclude thatthey are without merit. Present—Centra, J.P., Peradotto, Sconiers and Martoche, JJ.