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In the Matter of Jose A. Fuentes v. Brian Fischer

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


November 10, 2011

IN THE MATTER OF JOSE A. FUENTES,
PETITIONER-APPELLANT,
v.
BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
RESPONDENT-RESPONDENT.

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered June 25, 2010 in a proceeding pursuant to CPLR article 78.

Matter of Fuentes v Fischer

Decided on November 10, 2011

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.

The judgment denied 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 after a Tier III hearing that he violated certain inmate rules. We note at the outset that, as respondent correctly contends, petitioner withdrew the substantial evidence issue when he appeared in Supreme Court, and the court thus was not required to transfer the proceeding to this Court to decide that issue (see CPLR 7804 [g]), nor do we address it. Petitioner failed to exhaust his administrative remedies with respect to his sole remaining contention, i.e., that his due process rights were violated when he was penalized for attempting to mail certain documents to his home, having failed to raise that contention at the Tier III hearing, and this Court has no discretionary authority to reach that contention (see Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834).

Entered: November 10, 2011

Patricia L. Morgan Clerk of the Court

20111110

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