Sanchez v. Reid

In a proceeding pursuant to CPLR article 78 to review a determination made after a Tier II disciplinary hearing which imposed disciplinary sanctions against the petitioner, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Marlow, J.), entered April 24, 1985, which dismissed the petition. Judgment affirmed, without costs or disbursements. Based upon this record, Special Term could readily find the petitioner’s claims regarding the institution of a timely administrative appeal to the Superintendent of the Fishkill Correctional Facility pursuant to 7 NYCRR 253.8 to be incredible. Specifically, the petitioner admitted that a correction officer gave him an appeal form after the close of his Tier II disciplinary hearing, which he completed, but testified that the form consisted of only one piece of paper. However, the appeal form, submitted as an exhibit by the respondent, is a two-page document. When the top (white) copy of the form is filled out, a contact duplicate (yellow) copy is automatically created and the latter is to be retained by the inmate. The petitioner did not produce the yellow copy to support his claim. Furthermore, the First Deputy Superintendent’s search 549 of all pertinent files maintained at the facility with respect to administrative appeals by inmates from disciplinary dispositions failed to uncover an appeal by the petitioner. Accordingly, Special Term properly dismissed the petition due to the petitioner’s failure to exhaust his administrative remedies (see, Correction Law § 139; Matter of Patterson v Smith, 53 NY2d 98; Matter of Davidson v Scully, 110 AD2d 836; Matter of McCloud v Coughlin, 102 AD2d 854). Mollen, P. J., Thompson, Niehoff, Rubin and Kunzeman, JJ., concur.