                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 14, 2015                      518974
________________________________

In the Matter of PAUL KIM,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   March 31, 2015

Before:   Lahtinen, J.P., Garry, Rose and Clark, JJ.

                             __________


     Paul Kim, Woodbourne, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Peter H.
Schiff of counsel), for respondent.

                             __________


      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.

      As the result of an investigation, correction officials
allegedly obtained information that, over the course of a two-
year period, petitioner had taken his Walkman and other items
from his cell to his assigned college program outside the
correctional facility and used a computer at the college to
transfer his music onto the college's computer network. An
investigator searched petitioner's cell and found petitioner's
Walkman, altered audio cables and cassette tapes containing some
of the songs that matched those on the college's computer
network. Consequently, petitioner was charged in a misbehavior
                               -2-                518974

report with possessing an altered item, possessing contraband,
smuggling and failing to comply with assigned program
regulations. At the subsequent tier III disciplinary hearing,
petitioner pleaded guilty to possessing an altered item.
However, petitioner testified that he used the item for his radio
in his cell and not for the purpose set forth by the
investigator. At the conclusion of the hearing, he was found
guilty of this charge as well as smuggling and possessing
contraband, but not guilty of failing to comply with assigned
program regulations. The determination was later affirmed on
administrative appeal and this CPLR article 78 proceeding ensued.

      Initially, inasmuch as he pleaded guilty to possessing an
altered item, petitioner is precluded from challenging the
evidence supporting his guilt of this charge (see Matter of
Fields v Prack, 120 AD3d 1510, 1511 [2014]; Matter of Robinson v
Prack, 119 AD3d 1309, 1309 [2014]). Moreover, his admission to
possessing altered audio cables, together with the misbehavior
report and the testimony of its author, provide substantial
evidence supporting petitioner's guilt of possessing contraband
given that petitioner was not specifically authorized to possess
such items (see Matter of Infantino v Fischer, 116 AD3d 1305,
1305 [2014]; Matter of Hernandez v Prack, 108 AD3d 965, 965
[2013]; see also 7 NYCRR 270.2 [B] [14] [xiii]).

      We reach a different conclusion, however, with respect to
the charge of smuggling. The Attorney General concedes, and we
agree, that substantial evidence does not support petitioner's
guilt of this charge (see Matter of Minton v Fischer, 73 AD3d
1347, 1348 [2010], appeal dismissed 15 NY3d 848 [2010]; Matter of
Castillo v Goord, 46 AD3d 1060, 1060-1061 [2007]). Rather than
reviewing the confidential information provided to the Inspector
General's office and making independent assessments of
reliability and credibility, the Hearing Officer inappropriately
relied solely on unsupported testimony of the Inspector General's
investigator (see Matter of Muller v Fischer, 125 AD3d 1034, 1035
[2015]; Matter of Grate v Annucci, 122 AD3d 1053, 1054 [2014]).1


     1
        The confidential information is not contained within the
record before us.
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Furthermore, the record is devoid of any evidence that petitioner
engaged in smuggling his Walkman or the altered cables to copy
music to and from the program's computers, or how this affected
institutional safety and security. Accordingly, the finding of
guilt with respect to the smuggling charge must be annulled.

      As for the penalty imposed upon petitioner, because neither
the charges of which he is guilty nor the evidence presented at
the hearing establishes that petitioner's conduct was a threat to
institutional safety and security, we find that the imposition of
confinement in the special housing unit is harsh and excessive
(compare Matter of Rogers v Prack, 118 AD3d 1223, 1224-1225
[2014], lv granted 24 NY3d 916 [2015]; Matter of Thomassini v
Prack, 111 AD3d 1201, 1201-1202 [2013]; Matter of Serrano v
Goord, 266 AD2d 661, 662 [1999], lv denied 94 NY2d 762 [2000]).
However, inasmuch as no loss of good time was imposed and
petitioner has already served the penalty, the matter need not be
remitted (see Matter of Linares v Fischer, 119 AD3d 1300, 1301
[2014], lv denied 24 NY3d 909 [2014]; Matter of Brown v New York
State Dept. of Corrections & Community Supervision, 119 AD3d
1205, 1206 [2014]). Lastly, we have considered petitioner's
remaining contentions and find them to be unpersuasive.

     Lahtinen, J.P., Garry, Rose and Clark, JJ., concur.


      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
smuggling; petition granted to that extent and respondent is
directed to expunge all references to this charge from
petitioner's institutional record; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
