Opinion
February 7, 2001.
CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS AND LAWTON, JJ.
Determination unanimously modified on the law and as modified confirmed without costs in accordance with the following Memorandum:
We agree with petitioner that the determination finding him guilty of violating inmate rule 103.20 ( 7 NYCRR 270.2 [B] [4] [ii] [unauthorized soliciting]) based on his possession of materials published by the Amfrican Freedom Communion (AFC) is not supported by substantial evidence ( see generally, People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139). There is no proof that he was involved in the solicitation of members for that organization. We therefore modify the determination and grant the amended petition in part by annulling the determination that petitioner violated inmate rule 103.20. "Because the penalty has already been served and there was no recommended loss of good time, there is no need to remit the matter for reconsideration of the penalty imposed" ( Matter of Spaight v. Goord, 258 A.D.2d 935, 936, lv denied 93 N.Y.2d 807).
Petitioner further contends that the determination that he is guilty of violating inmate rule 105.12 ( 7 NYCRR 270.2 [B] [6] [iii] [possessing unauthorized organizational materials]) is not supported by substantial evidence because nothing in the record identifies the AFC as an unauthorized organization. Petitioner failed, however, to raise that issue in his administrative appeal, and thus he has failed to exhaust his administrative remedies with respect to it ( see, Matter of Battiste v. Goord, 255 A.D.2d 941, 942).