IN RE: Rodney WALTON (1998)

Appeal from a judgment of the Supreme Court (Demarest, J.), entered September 8, 1997 in Franklin County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

 Petitioner, a prison inmate, was found guilty of violating prison disciplinary rules prohibiting inmates from possessing controlled substances and smuggling.   He thereafter commenced this proceeding pursuant to CPLR article 78 and, based upon respondents' concession that there was insufficient evidence to establish that the confiscated items were controlled substances, Supreme Court annulled that portion of the determination finding petitioner guilty of possessing a controlled substance but upheld the finding of guilt on the smuggling charge.   Petitioner's contention that respondents' concession also required dismissal of the smuggling charge is unavailing.   The applicable regulation prohibits smuggling of “any item” and is not drug-specific (7 NYCRR 270.2[B][15][i];  see, Matter of Shakoor v. Coughlin, 165 A.D.2d 917, 560 N.Y.S.2d 528, appeal dismissed 77 N.Y.2d 866, 568 N.Y.S.2d 346, 569 N.E.2d 1025).   Finally, petitioner waived his challenge to the penalty of 24 months' loss of visitation privileges by failing to raise the issue on administrative appeal (see, Matter of Lugo v. Jones, 167 A.D.2d 636, 562 N.Y.S.2d 863).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.