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

825
CA 12-01230
PRESENT: FAHEY, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF ANTHONY D. AMAKER,
PETITIONER-APPELLANT,

                     V                               MEMORANDUM AND ORDER

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


ANTHONY D. AMAKER, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered March 27, 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 appeals from a judgment dismissing his
petition pursuant to CPLR article 78 seeking review of the determination
denying his request to have documents relating to the 2006 arrest and
prosecution of his mother removed from his inmate record. As a preliminary
matter, we note that, contrary to respondent=s contention, petitioner
exhausted his administrative remedies with respect to the issues raised
herein (cf. Matter of Wisniewski v Michalski, 114 AD3d 1188, 1189).

     Petitioner contends that the documents at issue were ordered sealed
pursuant to CPL 160.50, and that Supreme Court therefore acted in an
arbitrary and capricious manner in refusing to remove them from his inmate
record. We reject that contention. The court properly concluded that
the statutes relied upon by petitionerCCPL 160.50 and Executive Law '
296 (16)Cdo not require respondent to remove any information concerning
the 2006 incident from petitioner=s inmate record. Those statutes provide
protection only to petitioner=s mother, not to petitioner. Furthermore,
with respect to CPL 160.50, the Unusual Incident (UI) report, which is
one of the documents found in petitioner=s inmate record relating to the
2006 incident, is not a document that arises from a Acriminal action or
proceeding@ (id.). As properly noted by the court, the UI report is an
internal document prepared and used by respondent for administrative
purposes, and it is Aindependent of, and unrelated to, the >arrest or
prosecution= of the petitioner=s mother@ (see generally Matter of Hearst
                                   -2-                                 825
                                                               CA 12-01230

Corp. v City of Albany, 88 AD3d 1130, 1131-1132).

     We reject petitioner=s further contention that the Due Process and
Equal Protection Clauses of the State and Federal Constitutions mandate
that the documents at issue be removed from his inmate record. A[I]n
order to successfully assert a constitutional claim, the inmate must
establish that the challenged information in his [record] is false@ (Matter
of Scarola v Malone, 226 AD2d 844), and petitioner has not done so here.




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
