Supreme Court, Appellate Division, Fourth Department, New York.Apr 20, 2012
942 N.Y.S.2d 711 (N.Y. App. Div. 2012)
942 N.Y.S.2d 71194 A.D.3d 14042012 N.Y. Slip Op. 2961


In the Matter of Ramon ALVAREZ, Petitioner, v. Brian FISCHER, Commissioner, New York State Department of Correctional Services, Respondent.

Ramon Alvarez, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of Counsel), for Respondent.

Ramon Alvarez, Petitioner Pro Se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of Counsel), for Respondent.



Petitioner commenced this CPLR article 78 proceeding seeking to annul the determinations, following two separate disciplinary hearings, that he violated various inmate rules. He also seeks to challenge a determination transferring him into a sexual offender counseling and treatment program (SOCTP) and the denial of a grievance in which he alleged that he was denied medical attention after he was allegedly assaulted by correction officers. With respect to the relief requested for the SOCTP transfer, petitioner sought an order annulling that determination and returning him to his status before he was placed in the SOCTP facility. Even assuming, arguendo, that the petition raised a substantial evidence issue and thus that the proceeding was properly transferred to this Court ( see Matter of Grant v. Prack, 86 A.D.3d 885, 886 n., 927 N.Y.S.2d 474), we note that petitioner in his brief to this Court does not raise a substantial evidence issue. We thus deem abandoned any substantial evidence issue ( see Matter of Lineberger v. Bezio, 89 A.D.3d 1293, 1294, 932 N.Y.S.2d 738; Grant, 86 A.D.3d at 886 n., 927 N.Y.S.2d 474).

On December 17, 2010, petitioner was served with a Tier III misbehavior report (first MBR) alleging that he violated rules 101.22 (7 NYCRR 270.2[B][2][v] [stalking] ), 106.10 (7 NYCRR 270.2[B][7][i] [refusal to obey orders] ), and 107.10 (7 NYCRR 270.2[B][8][i] [interference with an employee] ). Petitioner's contention that he was denied an employee assistant is not properly before us inasmuch as it was not raised in the petition ( see Matter of Pigmentel v. Selsky, 19 A.D.3d 816, 817, 797 N.Y.S.2d 160; Matter of Crawford v. Kelly, 124 A.D.2d 1018, 508 N.Y.S.2d 961). In any event, his contention lacks merit. Petitioner signed a document waiving the right to an employee assistant, and he has demonstrated no prejudice resulting from the lack of such an assistant ( see Matter of Truman v. Fischer, 75 A.D.3d 1019, 1020, 907 N.Y.S.2d 343; Matter of Johnson v. Goord, 297 A.D.2d 881, 883, 747 N.Y.S.2d 604). Petitioner further contends that the Hearing Officer who presided at the hearing on the first MBR was biased. That contention, however, also is not properly before us ( see Matter of Madison v. Cunningham, 67 A.D.3d 1141, 1142, 888 N.Y.S.2d 309; Matter of Smith v. Fischer, 64 A.D.3d 1061, 1062, 882 N.Y.S.2d 770, lv. denied 13 N.Y.3d 712, 2009 WL 4016802). In any event, we again conclude that the contention lacks merit. “The record does not support petitioner's contention that the Hearing Officer was biased or that the determination flowed from the alleged bias” ( Matter of Rodriguez v. Herbert, 270 A.D.2d 889, 890, 706 N.Y.S.2d 284; see Matter of Colon v. Fischer, 83 A.D.3d 1500, 1501–1502, 921 N.Y.S.2d 441). Petitioner's final contention with respect to the first MBR is that he was denied his right of confrontation when he was denied access to adverse evidence. Petitioner failed to exhaust his administrative remedies with respect to that contention, and this Court has no discretionary authority to reach that contention ( see Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297).

While petitioner was confined in the special housing unit (SHU) as a result of the first MBR, he was served with another MBR (second MBR) alleging that he violated rules 113.22 (7 NYCRR 270.2[B][14] [xiii] [possessing articles in unauthorized areas] ) and 106.10 (7 NYCRR 270.2[B][7][i] [refusing to obey orders promptly and without argument] ). The second MBR was written on December 21, 2010. Contrary to petitioner's contention, the hearing on the second MBR was timely commenced and completed ( see 7 NYCRR 251–5.1 [a], [b] ). Because “petitioner was already confined to [the SHU] as a result of an unrelated matter when he received the instant misbehavior report [,] ... the seven-day rule for commencing the hearing was inapplicable” ( Matter of Faison v. Senkowski, 256 A.D.2d 702, 681 N.Y.S.2d 798, appeal dismissed 93 N.Y.2d 870, 689 N.Y.S.2d 17, 711 N.E.2d 202; see 7 NYCRR 251–5.1[a]; Matter of Applewhite v. Goord, 45 A.D.3d 1112, 846 N.Y.S.2d 457, lv. denied 10 N.Y.3d 711, 860 N.Y.S.2d 483, 890 N.E.2d 246; Matter of Rodriguez v. Goord, 276 A.D.2d 493, 713 N.Y.S.2d 696). Petitioner also contends that the hearing on the second MBR was untimely under section 251–5.1(b) because it was not completed within 14 days following the writing of the second MBR. That contention lacks merit. “In calculating the 14–day time period, the date the misbehavior report is written is excluded” ( Matter of Freeman v. Selsky, 270 A.D.2d 547, 547–548, 705 N.Y.S.2d 87; see Matter of Harris v. Goord, 268 A.D.2d 933, 934, 702 N.Y.S.2d 676; see generally General Construction Law § 20). Here, the second MBR was written on December 21, 2010, and the hearing was completed on January 4, 2011, which was within the requisite time period.

Petitioner further contends that the Hearing Officer presiding over the hearing on the second MBR was biased as well, but he failed to exhaust his administrative remedies with respect to that contention ( see Nelson, 188 A.D.2d at 1071, 591 N.Y.S.2d 670). With respect to petitioner's contention that he did not receive adequate employee assistance on the second MBR, we conclude that his contention is not properly before us inasmuch as petitioner did not raise that contention in his petition ( see Pigmentel, 19 A.D.3d at 817, 797 N.Y.S.2d 160; Crawford, 124 A.D.2d 1018, 508 N.Y.S.2d 961).

Finally, we note that Supreme Court erred in transferring that part of the proceeding related to the SOCTP transfer and medical attention grievances to this Court inasmuch as any determinations with respect to those grievances were “ ‘not made as a result of a hearing held ... pursuant to direction by law’ ” ( Matter of McEachin v. Fischer, 71 A.D.3d 1558, 1559, 897 N.Y.S.2d 577, amended on rearg. on other grounds 74 A.D.3d 1879, 902 N.Y.S.2d 468; see CPLR 7803[4]; Matter of Shomo v. Zon, 35 A.D.3d 1227, 827 N.Y.S.2d 391). We nevertheless address the contentions with respect thereto in the interest of judicial economy ( see McEachin, 71 A.D.3d at 1559, 897 N.Y.S.2d 577; Shomo, 35 A.D.3d 1227, 827 N.Y.S.2d 391). In his brief to this Court, petitioner does not raise any arguments with respect to his placement in the SOCTP program, and thus his “challenge to [that] determination is deemed abandoned” ( Matter of Lamage v. Bezio, 74 A.D.3d 1676, 1676, 906 N.Y.S.2d 110; see Matter of Gathers v. Artus, 59 A.D.3d 795, 873 N.Y.S.2d 753). In any event, petitioner admits that his grievances related to the SOCTP transfer were summarily rejected by the Grievance Office and that there was no determination thereon, and that the Grievance Office stated that it never received his purported grievance related to the denial of medical care. Thus, petitioner does not dispute that he did not receive a determination on his purported grievances and did not file any administrative appeals related to the purported denial of his grievances. Because petitioner has failed to exhaust administrative remedies with respect to those alleged grievances, we have no discretion to address the merits of his contentions related to them ( see Matter of Fulton v. Reynolds, 83 A.D.3d 1308, 1308–1309, 920 N.Y.S.2d 740; Matter of Torres v. Fischer, 73 A.D.3d 1355, 1356, 899 N.Y.S.2d 918; Matter of Francis v. Hollins, 255 A.D.2d 1008, 679 N.Y.S.2d 865, lv. denied 93 N.Y.2d 801, 687 N.Y.S.2d 625, 710 N.E.2d 272).

It is hereby ORDERED that the determinations are unanimously confirmed without costs and the petition is dismissed.