Mealer v. Selsky

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner challenges a determination finding him guilty of engaging in a sexual act and violating facility visiting procedures. The misbehavior report relates that petitioner was observed fondling his wife’s breast during a facility visit, despite having been warned about excessive physical contact on several prior occasions. Contrary to petitioner’s contention, we find that the misbehavior report, together with the testimony *779adduced at the hearing, constitute substantial evidence to support the determination of guilt (see, Matter of Murray v Goord, 263 AD2d 794; Matter of Garcia v Goord, 261 AD2d 674, lv dismissed 94 NY2d 834). Likewise, we reject petitioner’s assertion that the penalty of 60 days’ suspension of contact visitation was excessive (see, 7 NYCRR 200.5 [f]). Petitioner’s remaining arguments were not raised at the hearing and, thus, have not been preserved for our review (see, Matter of Stile v Goord, 285 AD2d 693).

Cardona, P.J., Crew III, Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.