IN RE: Gerard OSBORNE (1997)

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

Petitioner, a prison inmate, was found guilty of violating prison disciplinary rules prohibiting inmates from refusing to obey a direct order and intentionally exposing one's private body parts.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging that part of the determination that found him guilty of intentionally exposing his private body parts on the ground that it was not supported by substantial evidence.   We disagree.   The misbehavior report, written by the correction officer who observed petitioner in a public area “rubbing and pulling on his penis” and taking his penis into his hand to masturbate, was “ ‘sufficiently relevant and probative’ ” to support the finding of guilt (Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477, quoting Matter of Perez v. Wilmot, 67 N.Y.2d 615, 616-617, 499 N.Y.S.2d 659, 490 N.E.2d 526;  see, Matter of Aguilera v. Stinson, 233 A.D.2d 628, 649 N.Y.S.2d 849).   Petitioner's remaining contentions, to the extent that they are properly before this court, have been examined and found to be without merit.

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

MEMORANDUM DECISION.