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

622
TP 15-01810
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF LOVELLE G. JONES, PETITIONER,

                    V                             MEMORANDUM AND ORDER

ANTHONY ANNUCCI, RESPONDENT.


LOVELLE G. JONES, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO 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, Cayuga County [Mark H.
Fandrich, A.J.], entered October 26, 2015) 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 is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a tier III disciplinary
hearing, that he violated various inmate rules, including inmate rules
180.10 (7 NYCRR 270.2 [B] [26] [i] [facility visiting violation]) and
101.10 (7 NYCRR 270.2 [B] [2] [i] [sexual act]). Petitioner contends
that he did not commit the offenses charged but was the victim of
retaliation and that, therefore, substantial evidence does not support
the determination. We reject that contention. The misbehavior
report, together with the testimony of the author of the report who
observed the incident, “constitutes substantial evidence supporting
the determination that petitioner violated [the] inmate rule[s]” at
issue (Matter of Oliver v Fischer, 82 AD3d 1648, 1648). Petitioner’s
denials of the reported misbehavior raised, at most, an issue of
credibility for resolution by the Hearing Officer (see Matter of
Foster v Coughlin, 76 NY2d 964, 966). We reject petitioner’s further
contention that the Hearing Officer was biased or that the
determination flowed from the alleged bias (see Matter of Colon v
Fischer, 83 AD3d 1500, 1501-1502; Matter of Roberts v Selsky, 255 AD2d
977, 978).

     Finally, petitioner failed to exhaust his administrative remedies
with respect to his contentions that he was denied the right to call
witnesses and that he was denied access to an unusual incident report.
                                 -2-                           622
                                                         TP 15-01810

Petitioner failed to raise those contentions in his administrative
appeal, and this Court “has no discretionary power to reach [them]”
(Matter of Nelson v Coughlin, 188 AD2d 1071, 1071, appeal dismissed 81
NY2d 834).




Entered:   July 1, 2016                        Frances E. Cafarell
                                               Clerk of the Court
