IN RE: Donald CASE (2006)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

During a visit which was recorded on videotape, petitioner and his wife were observed engaging in what appeared to be a sexual act.   As a result, petitioner was charged in a misbehavior report with violating a prison disciplinary rule that prohibits inmates from engaging in such conduct.   He was found guilty of the charge following a tier III disciplinary hearing, and the determination was affirmed on administrative appeal with a modified penalty.   This CPLR article 78 proceeding ensued.

We confirm.   The misbehavior report recites that petitioner's wife was observed straddling petitioner's lap and thrusting up and down and then that the two used tissue to clean themselves.   This, together with the testimony of the author of the report, petitioner's testimony admitting to inappropriate touching, the documentary evidence and the videotape of the incident, provide substantial evidence supporting the determination of guilt (see Matter of Serrano v. Goord, 266 A.D.2d 661, 698 N.Y.S.2d 742 [1999], lv. denied 94 N.Y.2d 762, 707 N.Y.S.2d 622, 729 N.E.2d 341 [2000];  Matter of Lowery v. Coughlin, 190 A.D.2d 945, 945-946, 593 N.Y.S.2d 890 [1993], lv. denied 82 N.Y.2d 651, 601 N.Y.S.2d 581, 619 N.E.2d 659 [1993] ).   Petitioner's remaining contentions, to the extent they are properly before us, have been examined and found to be lacking in merit.

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