Burroughs v. Colvin

• Decision Date: 22 March 2019
• Docket Number: CA 18–01228,321
• Parties: In the Matter of Lorcen BURROUGHS, Petitioner–Appellant, v. Superintendent John COLVIN, Captain David M. Gleason, Lt. Andrew P. Giannino and Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1643

94 N.Y.S.3d 910 (Mem)

In the Matter of Lorcen BURROUGHS, Petitioner–Appellant,

v.Superintendent John COLVIN, Captain David M. Gleason, Lt. Andrew P. Giannino and Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondents–Respondents.

321

CA 18–01228

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: March 22, 2019

LORCEN BURROUGHS, PETITIONER–APPELLANT PRO SE.

BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.

PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

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 finding him guilty, following a tier II hearing, of violating inmate rules 107.11 ( 7 NYCRR 270.2 [B][8][ii] [harassment] ) and 180.11 ( 7 NYCRR 270.2 [B][26][ii] [facility correspondence violation] ). Petitioner appeals from a judgment denying his petition. We affirm.

Petitioner's contention that the determination is not supported by substantial evidence was not raised in the petition and is therefore not properly before us (see Matter of Cole v. Goord, 47 A.D.3d 1148, 1148, 850 N.Y.S.2d 283 [3d Dept. 2008] ; see generally Matter of Pigmentel v. Selsky, 19 A.D.3d 816, 817, 797 N.Y.S.2d 160 [3d Dept. 2005] ; Matter of Bones v. Kelly, 122 A.D.2d 593, 593, 505 N.Y.S.2d 13 [4th Dept. 1986] ). Petitioner's further contention that the Hearing Officer erred in denying his request to call a certain witness at the hearing was not raised in petitioner's administrative appeal. Petitioner thus failed to exhaust his administrative remedies with respect to that contention (see Matter of Ballard v. Kickbush, 165 A.D.3d 1587, 1589, 85 N.Y.S.3d 645 [4th Dept. 2018], appeal dismissed 32 N.Y.3d 1182, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Feb. 14, 2019] ), and this Court " ‘has no discretionary power to reach [it]’ " ( Matter of Jones v. Annucci, 141 A.D.3d 1108, 1109, 33 N.Y.S.3d 807 [4th Dept. 2016] ; see Matter of Ross–Simmons v. Fischer, 115 A.D.3d 1234, 1234, 982 N.Y.S.2d 424 [4th Dept. 2014] ). Finally, contrary to petitioner's contention, Supreme Court did not err in rejecting his assertion that the Hearing Officer was biased or that the determination flowed from such alleged bias (see Matter of Phillips v. Annucci, 150 A.D.3d 1673, 1674, 53 N.Y.S.3d 448 [4th Dept. 2017] ; Matter...