Fischl v. Coughlin

—Determination unanimously modified on the law and as modified confirmed without costs in accordance with the following Memorandum: Petitioner contends that the Hearing Examiner failed to make a determination concerning the credibility of an identified inmate witness who refused to testify at petitioner’s hearing. Because that issue was not raised on his administrative appeal, petitioner has failed to exhaust his administrative remedies with respect to it, and this Court has no discretionary power to reach the issue (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). Were we to reach the issue, we would conclude that it is without merit. The facts 1026 alleged in the misbehavior report were independently observed by the officer who wrote the report, and thus, the credibility of the inmate witness was not at issue. The determination must be modified, however, by vacating that part of the penalty imposing restitution of $46.50 for a damaged book; respondent concedes that there is insufficient evidence to support the Hearing Officer’s determination of the value of the book (see, Matter of Hartje v Coughlin, 70 NY2d 866, 868). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present — Pine, J. P., Lawton, Fallon, Callahan and Doerr, JJ.