Smith v. Goord

Nov 13, 1998
Versions:255 A.D.2d 1007
681 N.Y.S.2d 709
1998 N.Y. App. Div. LEXIS 12315

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: The misbehavior report, together with the author’s testimony, constitutes substantial evidence to support the determination that petitioner violated inmate rule 113.10 (7 NYCRR 270.2 [B] [14] [i] [possession of a weapon]; see, Matter of Bryant v Coughlin, 77 NY2d 642, 647; Matter of Foster v Coughlin, 76 NY2d 964, 966; Matter of Mosley v Goord, 242 AD2d 906). The credibility of an inmate who was an eyewitness to the incident was an issue for the Hearing Officer to resolve (see, Matter of Allen v Goord, 252 AD2d 973; Matter of Acevedo v Coughlin, 186 AD2d 1033). Upon our review of the record, we conclude that petitioner did not require the services of a translator (see, 7 NYCRR 254.2). Petitioner was sufficiently fluent in English to understand and participate in the proceeding, and the Hearing Officer noted several times that petitioner could speak English well (see, Matter of Robles v Coombe, 238 AD2d 628, 628-629). Contrary to the contention of petitioner, he was given the opportunity to question the correction officer who testified at the proceeding, but he failed to take advantage of that opportunity. Petitioner failed to raise the issue whether the proceeding was conducted in an impartial manner on his administrative appeal and thereby failed to exhaust his administrative remedies with respect to that issue (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 — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.