In the Matter of Thomas Rosati, Petitioner, v. Daniel A. Senkowski, as Superintendent of Clinton Correctional Facility, et al., Respondents

Third Department, November, 1995 (November 2, 1995) In the Matter of Thomas Rosati, Petitioner, v Daniel A. Senkowski, as Superintendent of Clinton Correctional Facility, et al., Respondents. [633 NYS2d 231] [MAJORITY] —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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was an inmate at a minimum security prison. As the result of an incident in which petitioner met with a female companion outside prison grounds to smoke a marihuana cigarette, petitioner was found guilty of smuggling, possession of a controlled substance and escape. He challenges only that part of the administrative determination finding him guilty of escape and argues that it is not supported by substantial evidence. Upon review of the record, we find that the misbehavior report and the testimony of the correction officer who prepared it constitute substantial evidence supporting the administrative determination. It is undisputed that petitioner was apprehended 30 to 50 yard southside facility grounds in a wooded area and that his companion was armed with a gun. Under these circumstances, the administrative determination must be confirmed. Mercure, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.