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

650
TP 16-01796
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF TROY WASHINGTON, PETITIONER,

                    V                               MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, ACTING COMMISSIONER, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. ARNOLD OF
COUNSEL), FOR RESPONDENT.


     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, Wyoming County [Michael M.
Mohun, A.J.], entered October 4, 2016) to review a determination of
respondent. The determination found after a tier III hearing that
petitioner had violated various inmate rules.

     It is hereby ORDERED that the determination so appealed from is
unanimously modified on the law and the petition is granted in part by
annulling that part of the determination finding that petitioner
violated inmate rule 107.10 (7 NYCRR 270.2 [B] [8] [i]) and as
modified the determination is confirmed without costs and respondent
is directed to expunge from petitioner’s institutional record all
references to the violation of that inmate rule.

     Memorandum: Petitioner commenced this CPLR article 78
proceeding, transferred to this Court pursuant to CPLR 7804 (g),
seeking to annul the determination, following a tier III hearing, that
he violated various inmate rules. As respondent correctly concedes,
the determination that petitioner violated inmate rule 107.10 (7 NYCRR
270.2 [B] [8] [i] [interference with employee]) is not supported by
substantial evidence. We therefore modify the determination by
granting the petition in part and annulling that part of the
determination finding that petitioner violated that rule, and we
direct respondent to expunge from petitioner’s institutional record
all references thereto. Inasmuch as petitioner has already served the
penalty and there was no recommended loss of good time, there is no
need to remit the matter to respondent for reconsideration of the
penalty.
                                 -2-                           650
                                                         TP 16-01796

     Contrary to petitioner’s contention, the determination finding
that he violated the remaining three inmate rules is supported by
substantial evidence (see generally People ex rel. Vega v Smith, 66
NY2d 130, 139). Petitioner failed to exhaust his administrative
remedies with respect to his further contention that the Hearing
Officer was biased against him because he failed to raise it in his
administrative appeal, and this Court “has no discretionary power to
reach [it]” (Matter of Nelson v Coughlin, 188 AD2d 1071, 1071, appeal
dismissed 81 NY2d 834).




Entered:   May 5, 2017                         Frances E. Cafarell
                                               Clerk of the Court
