SMITH v. GOORD (1998)

 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 N.Y.2d 642, 647, 569 N.Y.S.2d 582, 572 N.E.2d 23;  Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477;  Matter of Mosley v. Goord, 242 A.D.2d 906, 662 N.Y.S.2d 882).   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 A.D.2d 973, 676 N.Y.S.2d 372;  Matter of Acevedo v. Coughlin, 186 A.D.2d 1033, 590 N.Y.S.2d 826).   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 A.D.2d 628, 628-629, 656 N.Y.S.2d 964).   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 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).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: