IN RE: Rene GARCIA (1998)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Substantial evidence supports the determination finding petitioner, a prison inmate, guilty of violating the prison disciplinary rules which prohibit inmates from engaging or attempting to engage in sexual acts (7 NYCRR 270.2 [B] [1][i] ) and require compliance with prison guidelines regarding visitation procedures (7 NYCRR 270.2[B][26][i] ).   The misbehavior report stated that during a visit with his wife, petitioner was seen with his wife sitting on his lap, moving up and down.   Two other correction officers testified that when a correction officer went into the room where the visit was taking place, petitioner pushed his wife off his lap and zipped and buttoned his pants.   Petitioner's wife, while denying that they engaged in sexual intercourse, admitted that she had been sitting on petitioner's lap and was asked to get off his lap when the correction officer came into the room.   We find that the testimony at the hearing and the reasonable inferences to be drawn therefrom constitute substantial evidence to support the determination of petitioner's guilt.

Furthermore, assuming without deciding that petitioner's remaining contentions are preserved for our review (see, Matter of Alstranner v. Selsky, 238 A.D.2d 658, 656 N.Y.S.2d 968), we would find them to be lacking in merit.   The record is absent of any indication to support his contention that he was denied the right to call relevant witnesses or that the Hearing Officer was biased (see, Matter of Spencer v. Goord, 245 A.D.2d 827, 666 N.Y.S.2d 327, lv. denied 91 N.Y.2d 811, 671 N.Y.S.2d 715, 694 N.E.2d 884).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

MEMORANDUM DECISION.