SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

405 

TP 11-01530 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ. 

 

IN THE MATTER OF RAMON ALVAREZ, PETITIONER, 

V MEMORANDUM AND ORDER

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. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Erie County [John L.

Michalski, A.J.], entered July 26, 2011) to review determinations of

respondent and for injunctive and declaratory relief. The

determinations found that petitioner had violated various inmate rules

and transferred petitioner to Gowanda Correctional Facility to attend

a sex offender counseling and treatment program. 

It is hereby ORDERED that the determinations are unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: 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 AD3d 885, 886 n), 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 AD3d 1293, 1294; Grant, 86 AD3d at 886 n). 

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]
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TP 11-01530 

[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

AD3d 816, 817; Matter of Crawford v Kelly, 124 AD2d 1018). 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 AD3d 1019, 1020; Matter of Johnson v Goord, 297

AD2d 881, 883). 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 AD3d 1141, 1142; Matter of Smith v Fischer,

64 AD3d 1061, 1062, lv denied 13 NY3d 712). 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 AD2d 889, 890; see Matter of Colon v Fischer,

83 AD3d 1500, 1501-1502). 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 AD2d 1071, 1071, appeal

dismissed 81 NY2d 834).

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]

[xii] [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 AD2d 702, appeal dismissed 93 NY2d

870; see 7 NYCRR 251-5.1 [a]; Matter of Applewhite v Goord, 45 AD3d

1112, lv denied 10 NY3d 711; Matter of Rodriguez v Goord, 276 AD2d

493). 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 AD2d 547, 547-548; see Matter of Harris v Goord, 268 AD2d

933, 934; 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
-3- 405 

TP 11-01530 

(see Nelson, 188 AD2d at 1071). 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 AD3d at 817; Crawford, 124 AD2d 1018).

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 AD3d 1558, 1559, amended on rearg on other grounds 74 AD3d

1879; see CPLR 7803 [4]; Matter of Shomo v Zon, 35 AD3d 1227). We

nevertheless address the contentions with respect thereto in the

interest of judicial economy (see McEachin, 71 AD3d at 1559; Shomo, 35

AD3d 1227). 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 AD3d 1676, 1676; see Matter of Gathers v Artus, 59

AD3d 795). 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 AD3d

1308, 1308-1309; Matter of Torres v Fischer, 73 AD3d 1355, 1356;

Matter of Francis v Hollins, 255 AD2d 1008, lv denied 93 NY2d 801).

Entered: April 20, 2012 Frances E. Cafarell

Clerk of the Court