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

1462
CA 13-01587
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF JUNIOR WILSON,
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 (LEAH R. NOWOTARSKI 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 August 2, 2013 in a CPLR article 78
proceeding. The judgment dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner appeals from a judgment dismissing his
CPLR article 78 petition seeking to annul the determination after a
tier III hearing that he violated inmate rule 113.24 (7 NYCRR 270.2
[B] [14] [xiv] [drug use]). Petitioner contends that his due process
rights were violated because his urine sample was not tested
immediately, and it therefore should have been refrigerated prior to
testing. Petitioner failed to exhaust his administrative remedy with
respect to that contention 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:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
