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 which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in one misbehavior report with smuggling and conspiracy to possess drugs and in a second misbehavior report with drug possession. Following a tier III disciplinary hearing concerning both reports, petitioner was found guilty of all charges. The determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.
Initially, respondent concedes, and upon review of the record we agree, that the charges of smuggling and conspiracy to possess drugs are not supported by substantial evidence. Conse
To the extent preserved, petitioner’s remaining contentions have been examined and found to be without merit.
Peters, J.P, Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling and conspiracy to possess drugs and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner’s institutional record, and matter remitted to respondent for an administrative redetermination of the penalty imposed on the remaining violation; and, as so modified, confirmed.