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

265
CA 13-00261
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF AHJEMIN ROSS-SIMMONS,
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 (MARCUS J. MASTRACCO OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered November 20, 2012 in a proceeding pursuant to
CPLR article 78. The judgment denied 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, following a tier III disciplinary
hearing, that he violated certain inmate rules. Petitioner failed to
exhaust his administrative remedies with respect to his claims that he
was denied his right to be present during the testimony of his
witnesses and the author of the misbehavior report, and this Court has
no discretionary authority to reach those claims (see Matter of
Stewart v Fischer, 109 AD3d 1122, 1123, lv denied 22 NY3d 858; Matter
of Fuentes v Fischer, 89 AD3d 1468, 1469). Contrary to petitioner’s
contention, Supreme Court properly concluded that “the penalty is not
so disproportionate to the offense as to be shocking to one’s sense of
fairness” (Matter of Ciotoli v Goord, 256 AD2d 1192, 1193).




Entered:    March 21, 2014                      Frances E. Cafarell
                                                Clerk of the Court
