                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 23, 2015                     519308
________________________________

In the Matter of ROMAN
   SANTIAGO,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

MAUREEN E. BOLL, as Deputy
   Commissioner and Counsel
   of the Department of
   Corrections and Community
   Supervision,
                    Respondent,
                    et al.,
                    Respondent.
________________________________


Calendar Date:   June 2, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


     Roman Santiago, Ossining, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for Maureen E. Boll, respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (O'Connor, J.),
entered June 4, 2014 in Albany County, which, in a proceeding
pursuant to CPLR article 78, granted respondents' motions to
dismiss the petition.

      Petitioner, an inmate, is designated a central monitoring
case by respondent Department of Corrections and Community
Supervision (hereinafter DOCCS). He appealed the designation to
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DOCCS' Inspector General. The Inspector General sustained the
designation and petitioner commenced this CPLR article 78
proceeding, challenging the designation and seeking an order
directing respondent New York City Department of Probation to
amend his presentence investigation report. Supreme Court
granted respondents' motions to dismiss the petition, finding,
among other things, that petitioner was precluded from
challenging allegedly erroneous information in his presentence
investigation report that he argues DOCCS relied on in making the
designation. Petitioner appeals, challenging in his brief only
Supreme Court's dismissal of the petition that challenged his
designation as a central monitoring case.

      We affirm on a different ground than that expressed by
Supreme Court. "[A] petitioner must exhaust all his [or her]
administrative remedies before seeking judicial review unless he
or she is challenging an agency's action as unconstitutional or
beyond its grant of power, or if resort to the available remedies
would be futile or would cause the petitioner irreparable harm"
(Matter of Abdullah v Girdich, 297 AD2d 844, 845 [2002]; accord
Matter of Georgiou v Daniel, 21 AD3d 1230, 1231 [2005]).
Pursuant to DOCCS Directive No. 701, an inmate may challenge a
central monitoring case designation at any time during his or her
incarceration by first appealing to DOCCS' Inspector General and,
if unsuccessful, appealing that determination to DOCCS' Counsel.
Here, an affidavit from a representative of the Counsel's office
states that a search of that office's records revealed that no
appeal had been filed regarding the Inspector General's
determination of petitioner's initial appeal. Moreover, even if,
as petitioner contends, an appeal had been filed with the
Counsel's office, this proceeding was still prematurely
commenced, as no final determination has been issued by the
Counsel's office in connection to the appeal (see Matter of Kelly
v Selsky, 51 AD3d 1298 [2008]). Accordingly, that part of this
proceeding challenging DOCCS designation of him as a central
monitoring case should have been dismissed for petitioner's
failure to exhaust his administrative remedies (see Matter of
Valvano v Jones, 122 AD2d 336 [1986]).

     Peters, P.J., Lahtinen and Garry, JJ., concur.
                        -3-                  519308

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
