Francisco v. Coombe

231 A.D.2d 917, 648 N.Y.S.2d 360, 1996 N.Y. App. Div. LEXIS 10801

Opinion

Determination unanimously confirmed without costs and petition dismissed. Memorandum: We reject the contention of petitioner that the determination is unsupported by substantial evidence. The misbehavior report, signed by a correction officer who stated that he observed petitioner throw a large piece of concrete at another inmate, constitutes substantial evidence to support the determination that petitioner violated inmate rules 100.10, 104.11 and 106.10 (7 NYCRR 270.2 [B] [1] [i]; [5] [ii]; [7] [i]; see, Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Perez v Wilmot, 67 NY2d 615, 616). Petitioner’s contentions regarding the penalty imposed were not raised in the administrative appeal. Thus, petitioner failed to exhaust his administrative remedies with respect to those contentions and the court lacks discretionary power to review them {see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Green, J. P., Pine, Wesley, Davis and Boehm, JJ.