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

736
CA 13-00626
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF NATHANIEL JAY,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK
STATE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.


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

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered February 4, 2013 in a proceeding pursuant to
CPLR article 78. The judgment dismissed 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 that he violated multiple inmate
rules. “Contrary to petitioner’s contention, the record does not
establish that the Hearing Officer was biased or that the
determination flowed from the alleged bias” (Matter of Amaker v
Fischer, 112 AD3d 1371, 1372; see Matter of Alvarez v Fischer, 94 AD3d
1404, 1406). “The mere fact that the Hearing Officer ruled against
the petitioner is insufficient to establish bias” (Matter of Edwards v
Fischer, 87 AD3d 1328, 1329 [internal quotation marks omitted]). Also
contrary to petitioner’s contention, the Hearing Officer did not
improperly deny petitioner his right to present evidence inasmuch as
the evidence petitioner sought to present, i.e., petitioner’s prison
disciplinary history, was not relevant to the instant charges against
petitioner (see Matter of Pujals v Fischer, 87 AD3d 767, 767). In any
event, the failure of the Hearing Officer to permit petitioner to
submit that evidence “does not require annulment of the administrative
determination, especially in light of the overwhelming evidence of
petitioner’s guilt” (Matter of Auricchio v Goord, 275 AD2d 842, 842).

     Finally, petitioner challenges the penalty imposed. Inasmuch as
petitioner failed to raise that challenge in his administrative
appeal, he “thereby failed to exhaust his administrative remedies and
                                 -2-                          736
                                                        CA 13-00626

this Court has no discretionary power to reach that issue” (Matter of
Medina v Coughlin, 202 AD2d 1000, 1000; see Matter of Francisco v
Coombe, 231 AD2d 917, 917; see generally Matter of Nelson v Coughlin,
188 AD2d 1071, 1071, appeal dismissed 81 NY2d 834).




Entered:   June 13, 2014                       Frances E. Cafarell
                                               Clerk of the Court
