Fedrick v. Coughlin

—Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Respondent’s determination that petitioner violated inmate rule 113.15 (7 NYCRR 270.2 [B] [14] [vi]) is not supported by substantial evidence "inasmuch as a PIN number is not an 'article’ within the meaning of that rule” (Matter of Muqtadir v Coughlin, 212 AD2d 1048, 1049). Thus, we modify the determination by granting in part the petition, annulling the determination that petitioner violated that rule and vacating the penalty imposed, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violations (see, Matter of Muqtadir v Coughlin, supra). The contention that the disciplinary hearing was untimely commenced and completed in violation of 7 NYCRR 251-5.1 (a) and (b) is raised for the first time in petitioner’s pro se supplemental brief, and thus petitioner failed to exhaust his administrative remedies with respect to that contention (see, Matter of Bates v Coughlin, 145 AD2d 854, lv denied 74 NY2d 602). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Den-man, P. J., Green, Wesley, Balio and Davis, JJ.