
    In the Matter of Anthony Blackburn, Petitioner, v Sally B. Johnson, as Superintendent of Orleans Correctional Facility, et al., Respondents.
   Petitioner was an inmate at Orleans Correctional Facility on May 18, 1987 when he was served with a misbehavior report charging him with conspiracy to smuggle drugs into the facility. After a Tier III disciplinary hearing, petitioner was found guilty of this charge and a penalty of 45 days’ confinement in the special housing unit, loss of 30 days of good time and loss of certain privileges was imposed.

Petitioner was cited for violating inmate disciplinary rule 114.10, which provides that "inmates shall not smuggle or attempt to smuggle any item in or out of the facility.” However, he was neither charged with nor found guilty of smuggling or attempted smuggling, but rather with conspiracy to smuggle drugs into the facility. Since conspiracy to smuggle does not fall within the scope of this disciplinary rule, respondent’s finding of guilt cannot be sustained. Further, substantial evidence is not found in the record that petitioner was conspiring to smuggle drugs into the facility. Accordingly, the institutional findings of guilt must be nullified and the proceedings expunged from petitioner’s records. (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present — Dillon, P. J., Boomer, Pine, Balio and Lawton, JJ.  