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In the Matter of Marcelo Rodriquez v. Brian Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


January 13, 2011

IN THE MATTER OF MARCELO RODRIQUEZ, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered January 20, 2010 in Sullivan County, which converted an application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, into a proceeding pursuant to CPLR article 78 and dismissed the petition.

MEMORANDUM AND ORDER

Calendar Date: November 29, 2010

Before: Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ.

In 1976, petitioner was convicted of four counts of murder in the second degree as well as one count of robbery in the first degree and was sentenced to an aggregate prison term of 25 years to life. Following a tier III disciplinary hearing, petitioner was found guilty of violating certain prison disciplinary rules after he received mail at the correctional facility pertaining to two class action lawsuits. He brought an application for a writ of habeas corpus challenging the disciplinary determination.

Supreme Court converted the application into a proceeding pursuant to CPLR article 78 and dismissed the petition for failure to exhaust administrative remedies. Petitioner appeals.

We affirm. The record discloses that petitioner brought the application for a writ of habeas corpus after the disciplinary determination was rendered, but before the administrative appeal of that determination had been completed. In fact, after petitioner filed his pro se petition for a writ of habeas corpus, a decision was made on the administrative appeal which reduced the penalty. Clearly, petitioner failed to fully exhaust his administrative remedies prior to bringing a legal proceeding to challenge the disciplinary determination (see Matter of West v McGinnis, 4 AD3d 654, 655 [2004]; Matter of Watkins v Annucci, 305 AD2d 889, 890 [2003]). Consequently, Supreme Court properly dismissed the petition. Petitioner's remaining contentions have been considered and are lacking in merit.

Peters, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110113

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