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

671
CA 13-00359
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.


IN THE MATTER OF NELSON BRITTO,
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 (JEFFREY W. LANG OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered January 28, 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, following a tier III disciplinary
hearing, that he violated inmate rules 113.10 (7 NYCRR 270.2 [B] [14]
[i] [weapon possession]) and 114.10 (7 NYCRR 270.2 [B] [15] [i]
[smuggling]). Petitioner failed to exhaust his administrative
remedies with respect to his claim that he was denied his request for
a witness, and this Court has no discretionary authority to reach that
claim (see Matter of Stewart v Fischer, 109 AD3d 1122, 1123, lv denied
22 NY3d 858).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
