Katowski v. Poole

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered August 19, 2003 in a proceeding pursuant to CPLR article 78. The judgment, insofar as appealed from, granted the petition in part and annulled a determination finding that petitioner had violated an inmate rule. It is hereby ordered that the judgment, insofar as appealed from, be and the same hereby is unanimously reversed on the law without costs and the petition is dismissed in its entirety. Memorandum: We agree with respondents that Supreme Court erred in granting the petition in part and annulling the determination finding petitioner guilty of violating inmate rule 113.24 (7 NYCRR 270.2 [B] [14] [xv] [drug use]) based on the 1226 contention that petitioner was denied the opportunity to call a witness at the Tier III hearing. Petitioner failed to exhaust his administrative remedies with respect to that contention and the court therefore did not have the power to review it (see Matter of Johnson v Goord, 280 AD2d 998 [2001]; Matter of Nelson v Coughlin, 188 AD2d 1071 [1992], appeal dismissed 81 NY2d 834 [1993]). We have reviewed the remaining allegations of the petition and conclude that they are without merit. Present— Pigott, Jr., P.J, Green, Pine, Wisner and Lawton, JJ.