         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
259
TP 10-02012
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF EDDIE M. ROBINSON, PETITIONER,

                    V                              MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES AND JOHN
LEMPKE, SUPERINTENDENT, FIVE POINTS CORRECTIONAL
FACILITY, RESPONDENTS.


EDDIE M. ROBINSON, PETITIONER PRO SE.

ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (FRANK K. WALSH OF COUNSEL),
FOR RESPONDENTS.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Seneca County [Dennis F.
Bender, A.J.], entered October 1, 2010) to review a determination of
respondents. The determination placed petitioner in involuntary
protective custody.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner, an inmate in a correctional facility,
commenced this CPLR article 78 proceeding seeking to annul the
determination, following a hearing, that he should be placed into
involuntary protective custody. The determination was based upon a
letter that petitioner wrote criticizing the Muslim religion, which he
showed to other inmates and sent to the facility’s Imam. Contrary to
the contention of petitioner, substantial evidence supports the
determination that he should be placed into involuntary protective
custody on the ground that he “may be a potential victim” (7 NYCRR
330.2 [b]; see Matter of Bartley v Fischer, 73 AD3d 1363). That
evidence included petitioner’s testimony at the hearing that he wrote
the letter, as well as the testimony of an inmate to whom petitioner
showed the letter, the correction officer who wrote the recommendation
that petitioner be placed into involuntary protective custody, and the
Imam (see generally Matter of Foster v Coughlin, 76 NY2d 964, 966;
People ex rel. Vega v Smith, 66 NY2d 130, 139). Petitioner’s denial
that he feared for his personal safety and his contention that he did
not willingly absent himself from the hearing merely presented a
credibility issue that the Hearing Officer was free to resolve against
him (see Matter of Miller v New York State Dept. of Correctional
                                 -2-                           259
                                                         TP 10-02012

Servs., 295 AD2d 714).

     Petitioner further contends that he was denied the right to
confront the confidential witnesses against him. He did not raise
that contention on his administrative appeal, and thus he failed to
exhaust his administrative remedies with respect to that issue (see
Matter of Tifer v Coughlin, 214 AD2d 1036; Matter of Nelson v
Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834; see generally
Matter of Khan v New York State Dept. of Health, 96 NY2d 879). We
have considered petitioner’s remaining contentions and conclude that
they are without merit.




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
