Keener v. Herbert , 700 N.Y.S.2d 899 ( 1999 )

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was found guilty following a Tier II hearing of violating inmate rule 102.10 (7 NYCRR 270.2 [B] [3] [i] [making threats]). At the hearing, petitioner admitted making a statement to the author of the misbehavior report, but denied that the statement was a threat. The statement repeated in the misbehavior report constitutes a threat, and thus there is substantial evidence to support the determination (see, Matter of Bryant v Coughlin, 77 NY2d 642, 647; People ex rel. Vega v Smith, 66 NY2d 130, 139). The remaining contentions of petitioner were not raised on administrative appeal. Petitioner thereby failed to exhaust his administrative remedies, and we have no discretionary power to reach those contentions (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Doyle, J.) Present — Pine, J. P., Wisner, Hurlbutt and Balio, JJ.