           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1205
CA 10-01587
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.


IN THE MATTER OF JOSE A. FUENTES,
PETITIONER-APPELLANT,

                     V                            MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES,
RESPONDENT-RESPONDENT.


JOSE A. FUENTES, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered June 25, 2010 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 after a Tier III hearing that he
violated certain inmate rules. We note at the outset that, as
respondent correctly contends, petitioner withdrew the substantial
evidence issue when he appeared in Supreme Court, and the court thus
was not required to transfer the proceeding to this Court to decide
that issue (see CPLR 7804 [g]), nor do we address it. Petitioner
failed to exhaust his administrative remedies with respect to his sole
remaining contention, i.e., that his due process rights were violated
when he was penalized for attempting to mail certain documents to his
home, having failed to raise that contention at the Tier III hearing,
and this Court has no discretionary authority to reach that contention
(see Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81
NY2d 834).




Entered:   November 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
