Fereira v. Coombe

239 A.D.2d 905, 659 N.Y.S.2d 620, 1997 N.Y. App. Div. LEXIS 6264

Opinion

Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner, an inmate at Attica Correctional Facility, seeks to annul a determination that he possessed a weapon and assaulted another inmate in violation of inmate rules 113.10 and 100.10 (7 NYCRR 270.2 [B] [14] [i]; [1] [i]). Petitioner failed to exhaust his administrative remedies with respect to his contention that he was denied adequate prehearing employee assistance by failing to raise it in his administrative appeal (see, Matter of Rodriguez v Coughlin, 219 AD2d 876; Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). We reject petitioner’s further contention that the determination is not supported by substantial evidence. The hearing evidence establishes that, prior to the incident, all inmates in the cell area with the exception of petitioner had been locked in their cells and that petitioner was the only inmate with the mobility and opportunity to stab his fellow inmate. Although entirely circumstantial, the proof constitutes substantial evidence in support of the determination (see, Matter of Hay v Coombe, 229 AD2d 1015, lv denied 88 NY2d 816; Matter of Motell v Napolitano, 186 AD2d 989, 990). Petitioner’s testimony that the victim was despondent and that the injury was self-inflicted presented an issue of credibility for the Hearing Officer to resolve (see, Matter of Hay v Coombe, supra; Matter of Hawkins v Coombe, 225 AD2d 1095, 1096). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Den-man, P. J., Pine, Callahan, Balio and Fallon, JJ.