BATTISTE v. GOORD (1998)

 Petitioner was charged with violating inmate rules 113.22 (7 NYCRR 270.2[B][14][xiii] [possessing authorized articles in unauthorized areas] ) and 105.12 (7 NYCRR 270.2[B][6][iii] [possessing unauthorized organizational materials] ).   According to the inmate misbehavior report, a correction officer found petitioner in possession of numerous photographs, one of which showed petitioner's hand displaying a “Bloods” sign.   At a Tier II hearing, petitioner pleaded guilty to violating inmate rule 113.22 and not guilty to violating inmate rule 105.12.   Petitioner testified that the photograph at issue depicted his hand displaying a “peace sign”.   After the hearing, petitioner was found guilty of violating inmate rule 105.12.

 There is nothing in the record to identify the Bloods as an unauthorized organization, i.e., a “gang”;  nevertheless, petitioner did not raise that issue in his administrative appeal and thus failed to exhaust his administrative remedies with respect to it (see, Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 591 N.Y.S.2d 670, appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297).   It was for the Hearing Officer to decide whether to credit petitioner's testimony (see, Matter of Perez v. Wilmot, 67 N.Y.2d 615, 616, 499 N.Y.S.2d 659, 490 N.E.2d 526).   The written misbehavior report is sufficiently probative to constitute substantial evidence supporting the determination that petitioner violated inmate rule 105.12 (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 140, 495 N.Y.S.2d 332, 485 N.E.2d 997).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: