IN RE: the Claim of Christopher G. WEIGAND (1999)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 3, 1997, which, upon reconsideration, adhered to its prior decision ruling that claimant was entitled to receive unemployment insurance benefits.

 Claimant was discharged from his employment as a probationary correction officer after he was arrested for driving while intoxicated.   The employer appeals the decision of the Unemployment Insurance Appeal Board finding that claimant's behavior did not amount to disqualifying misconduct.   We affirm.   Unlike Matter of Cerasuolo (New York City Dept. of Correction-Hudacs), 205 A.D.2d 827, 612 N.Y.S.2d 516, relied upon by the employer, there is no admission by claimant that he engaged in drunk driving.   Furthermore, the criminal charge was still pending at the time of the unemployment insurance hearing.   As previously noted by this court, a finding of disqualifying misconduct should not be predicated upon an arrest (see, Matter of Benjamin [Hartnett], 175 A.D.2d 936, 937, 572 N.Y.S.2d 970).   Under the circumstances presented here, we conclude that substantial evidence supports the Board's decision.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.