        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

434
TP 10-02181
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


IN THE MATTER OF RIVAS COLON, PETITIONER,

                    V                              MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


RIVAS COLON, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Seneca County [Dennis F.
Bender, A.J.], entered November 1, 2010) to review three separate
determinations of respondent. The determinations found after Tier III
hearings that petitioner had violated various inmate rules.

      It is hereby ORDERED that said proceeding with respect to the
determination dated April 19, 2010 is unanimously dismissed without
costs, the determination dated April 20, 2010 is modified on the law
by granting the petition in part, annulling that part of the
determination finding that petitioner violated inmate rule 106.10 (7
NYCRR 270.2 [B] [7] [i]) and vacating the penalty and as modified the
determination is confirmed without costs, respondent is directed to
expunge from petitioner’s institutional record all references to the
violation of that inmate rule, the determination dated April 26, 2010
is confirmed without costs and the petition with respect to that
determination is dismissed and the matter is remitted to respondent
for further proceedings in accordance with the following Memorandum:
Petitioner commenced this CPLR article 78 proceeding seeking to annul
three determinations that he violated various inmate rules as charged
in three misbehavior reports. The first determination, dated April
19, 2010, was based on a misbehavior report alleging that defendant
violated inmate rule 113.24 (7 NYCRR 270.2 [B] [14] [xiv] [drug use]).
After petitioner commenced this proceeding, respondent issued an
administrative order reversing the determination that defendant
violated that inmate rule and directing that all references to the
subject disciplinary proceeding be expunged. We therefore conclude
that the proceeding insofar as it relates to the first determination
should be dismissed as moot (see Matter of Free v Coombe, 234 AD2d
996).
                                 -2-                           434
                                                         TP 10-02181

     The second determination, dated April 20, 2010, was based on a
misbehavior report alleging that, during a pat frisk, a balloon
containing an unknown substance was found in petitioner’s pocket.
When petitioner attempted to swallow the balloon, a struggle ensued
between petitioner and the correction officer who was trying to stop
him. During that struggle, petitioner bit the correction officer. As
respondent correctly concedes, the determination that petitioner
violated inmate rule 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusal to
obey a direct order]) is not supported by substantial evidence. We
conclude, however, that there is substantial evidence to support the
determination that petitioner violated inmate rules 107.10 (7 NYCRR
270.2 [B] [8] [i] [interference with employee]) and 100.11 (7 NYCRR
270.2 [B] [1] [ii] [assault on staff member]). The misbehavior report
together with documentary evidence and the hearing testimony of the
correction officer, an eyewitness and petitioner constituted
substantial evidence that petitioner violated those inmate rules (see
generally People ex rel. Vega v Smith, 66 NY2d 130, 139). Contrary to
petitioner’s contention, the record does not establish “that the
Hearing Officer was biased or that the determination flowed from the
alleged bias” (Matter of Rodriguez v Herbert, 270 AD2d 889, 890).
Although petitioner further contends that the determination is
arbitrary and capricious, he failed to raise that contention in his
administrative appeal. He thus failed to exhaust his administrative
remedies with respect thereto, and this Court has no discretionary
power to reach that issue (see Matter of Nelson v Coughlin, 188 AD2d
1071, appeal dismissed 81 NY2d 834).

     We therefore modify the second determination by granting the
petition in part and annulling that part of the determination finding
that petitioner violated inmate rule 106.10, and we direct respondent
to expunge from petitioner’s institutional record all references to
the violation of that rule. Because a single penalty was imposed for
all three violations charged, and the record fails to specify any
relation between the violations and that 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 based on the first misbehavior report (see Matter of Pena v
Goord, 6 AD3d 1106, 1106-1107).

     The third determination, dated April 26, 2010, was based on a
misbehavior report alleging, inter alia, that petitioner defecated on
the floor and then swallowed a piece of a balloon that he retrieved
from his feces. Correction officers found additional pieces of
balloon in the feces. Contrary to petitioner’s contention, the
determination that petitioner violated inmate rules 113.23 (7 NYCRR
270.2 [B] [14] [xiii] [contraband]), 106.10 and 107.10 is supported by
substantial evidence. The misbehavior report, together with
documentary evidence and the testimony of a correction officer
constitute substantial evidence supporting the determination (see
Matter of Mitchell v Phillips, 268 AD2d 633). Petitioner further
contends that he had insufficient notice that pieces of balloon were
considered contraband. By failing to raise that contention during the
hearing, however, defendant failed to preserve it for our review, and
this Court has no discretionary power to reach that issue (see Matter
                                 -3-                             434
                                                           TP 10-02181

of Hamilton v Goord, 32 AD3d 642, lv denied 7 NY3d 715).   We therefore
confirm the third determination.




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
