In the Matter of Brian C. Jones, Appellant, v. Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents

In the Matter of Brian C. Jones, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents. [605 NYS2d 959] [MAJORITY] Appeal from a judgment of the Supreme Court (Ellison, J.), entered July 8, 1992 in Chemung County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for failure to exhaust administrative remedies. Upon administrative appeal, respondent Commissioner of Correctional Services properly annulled the initial finding of the Hearing Officer, that petitioner was guilty of violating a prison disciplinary rule, and remitted the matter for a rehearing after finding that petitioner had been improperly denied a witness. Further, upon remittal petitioner chose not to call any witnesses and pleaded guilty. In any event, petitioner has not administratively appealed the second determination and has therefore failed to exhaust his administrative remedies. Crew III, J. P., Cardona, White, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.