Kellam v. Walker

—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: Petitioner failed to exhaust his administrative remedies with respect to his contention that no extension of time was granted for his Tier III hearing, and this Court has no discretionary power to review that contention (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). The record does not support petitioner’s contention that the Hearing Officer was biased or acted in an arbitrary and capricious manner (see, Matter of Hooper v Goord, 247 AD2d 884, 884-885; Matter of Dawes v 1117 Selsky [appeal No. 2], 242 AD2d 907). The misbehavior report constitutes substantial evidence to support the determination that petitioner violated inmate rules 104.10 (7 NYCRR 270.2 [B] [5] [i]) and 104.12 (7 NYCRR 270.2 [B] [5] [iii]) (see, People ex rel. Vega v Smith, 66 NY2d 130, 139). The determination that petitioner violated inmate rule 104.11 (7 NYCRR 270.2 [B] [5] [ii] [inmates shall not engage in any violent conduct or conduct involving the threat of violence]) must be annulled, however, because the misbehavior report does not state facts indicating that petitioner engaged in such conduct (see, Matter of Urgitano v Coughlin, 191 AD2d 1047, 1048), nor is there otherwise any proof in the record to support that determination. Thus, we modify the determination and grant in part the petition by annulling the determination that petitioner violated inmate rule 104.11. Because one penalty was imposed and the record does not specify any relation between the violations and the penalty, we further modify the determination by vacating the penalty, and we remit the matter to respondent for imposition of an appropriate penalty on the remaining violations (see, Matter of Brooks v Coughlin, 182 AD2d 1115, 1116). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Cayuga County, Corning, J.) Present — Green, J. P., Wisner, Hayes, Balio and Fallon, JJ.