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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Richard KELLAM, Petitioner, v. Hans WALKER, Superintendent, Auburn Correctional Facility, Respondent.

Decided: December 31, 1998

Present:  GREEN, J.P., WISNER, HAYES, BALIO and FALLON, JJ. Richard Kellam, Auburn, Pro Se. Martin Hotvet, Albany, for Respondent.

 Petitioner failed to exhaust his administrative remedies with respect to his contention that no extension of time was granted for his Tier III hearing, and this Court has no discretionary power to review that contention (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).   The record does not support petitioner's contention that the Hearing Officer was biased or acted in an arbitrary and capricious manner (see, Matter of Hooper v. Goord, 247 A.D.2d 884, 884-885, 668 N.Y.S.2d 800;  Matter of Dawes v. Selsky [appeal No. 2], 242 A.D.2d 907, 678 N.Y.S.2d 924).   The misbehavior report constitutes substantial evidence to support the determination that petitioner violated inmate rules 104.10 (7 NYCRR 270.2 [B] [5][i] ) and 104.12 (7 NYCRR 270.2[B][5][iii] ) (see, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997).   The determination that petitioner violated inmate rule 104.11 (7 NYCRR 270.2[B] [5] [ii] [inmates shall not engage in any violent conduct or conduct involving the threat of violence] ) must be annulled, however, because the misbehavior report does not state facts indicating that petitioner engaged in such conduct (see, Matter of Urgitano v. Coughlin, 191 A.D.2d 1047, 1048, 595 N.Y.S.2d 159), nor is there otherwise any proof in the record to support that determination.   Thus, we modify the determination and grant in part the petition by annulling the determination that petitioner violated inmate rule 104.11.   Because one penalty was imposed and the record does not specify any relation between the violations and the 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 (see, Matter of Brooks v. Coughlin, 182 A.D.2d 1115, 1116, 583 N.Y.S.2d 91).

Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings.