IN RE: Peter CRUZ (1999)

Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the New York State Department of Correctional Services dated July 14, 1997, which affirmed a determination of the Superintendent of Fishkill Correctional Facility, dated April 25, 1997, finding, after a hearing, that the petitioner was guilty of a facility visiting violation, and imposed a penalty.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements.

 The written misbehavior report which was prepared by an employee of the facility who observed the incident provided substantial evidence of the petitioner's misconduct (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 563 N.Y.S.2d 728, 565 N.E.2d 477).   Contrary to the petitioner's contention, the mere fact that he was found not guilty with regard to one of the two rule violations which were cited in the inmate misbehavior report does not compel the conclusion that the respondents' determination of guilt with regard to the other rule violation was arbitrary and capricious.

MEMORANDUM BY THE COURT.