Calendar Date: June 12, 2017
King, Collins, petitioner pro se.
T. Schneiderman, Attorney General, Albany (Peter H. Schiff of
counsel), for respondent.
Before: McCarthy, J.P., Rose, Devine, Aarons and Rumsey, JJ.
MEMORANDUM AND JUDGMENT
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating
certain prison disciplinary rules.
search of petitioner's tobacco pouch revealed a green
leafy substance, wrapped in plastic, which, in turn, was
wrapped in blue paper. When asked to identify the green leafy
substance, petitioner informed the correction officer that it
was "just garbage." The correction officer then
notified his supervisor of the discovery and turned the
substance over to another correction officer so that it could
be tested for the presence of marihuana. The substance
ultimately tested negative for marihuana, but the test
consumed the entire amount confiscated from petitioner, thus
preventing any further testing. Thereafter, the supervisor,
who had observed the substance prior to its testing,
identified it as synthetic marihuana, based upon his
experience and training.
result, the correction officer who discovered the substance
authored a misbehavior report charging petitioner with lying,
possessing contraband and smuggling, and petitioner was later
charged in another misbehavior report, authored by the
supervisor, with possessing contraband. At the tier III
disciplinary hearing on both reports, the contraband charge
contained in the first misbehavior report was dismissed as
duplicative. Petitioner pleaded guilty to the charge of lying
and admitted that the carefully wrapped item was a green
leafy substance that normally would not be found in a tobacco
pouch. He also conceded that the supervisor's belief that
the item was synthetic marihuana was reasonable. Petitioner
was then found guilty of the remaining charges of smuggling
and possessing contraband. The determination was affirmed on
administrative appeal, with a modified penalty, and this CPLR
article 78 proceeding ensued.
plea of guilty to the lying charge forfeited any challenge to
the sufficiency of the evidence supporting the determination
of guilt regarding that charge (see Matter of Shufelt v
Annucci, 138 A.D.3d 1336, 1337 ). Further, he has
abandoned any challenge to the finding of guilt with respect
to the smuggling charge by his failure to raise this issue in
his brief (see Matter of Mays v Cunningham, 140
A.D.3d 1511, 1512 ; Matter of Carter v
Fischer, 117 A.D.3d 1262, 1262 ). As for the
remaining charge of possessing contraband, "an inmate
shall not possess any item unless it has been specifically
authorized" (7 NYCRR 270.2 [B]  [xiii]). Given
petitioner's concessions and the supervisor's
representations in the misbehavior report that his
identification was based upon his prior training and
experience, we find that the item contained in the tobacco
pouch was adequately identified as synthetic marihuana and,
therefore, the determination that it was unauthorized
contraband is supported by substantial evidence (see
Matter of Oliver v Fischer, 107 A.D.3d 1268, 1269 
[confirming a finding of possession of contraband based upon
an experienced correction official's identification of
the substance as synthetic marihuana, despite the fact that
it tested negative for marihuana]).
recent decision in Matter of McCaskell v Rodriguez
(148 A.D.3d 1407, 1408 ) is distinguishable from this
case inasmuch as McCaskell dealt with the additional
charge of possessing an intoxicant, which required proof that
the substance had been positively identified as an
"intoxicant" via a drug test. Finding that the drug
testing procedures were not followed in McCaskell,
we annulled both the finding of possessing an intoxicant and
possessing contraband (id.; see Matter of
Wendell v Annucci, 149 A.D.3d 1430, 1430 ;
Matter of Cross v Annucci, 131 A.D.3d 758, 759
). Here, unlike McCaskell, petitioner was only
charged with possessing contraband and, although drug testing
procedures were followed, they became irrelevant after the
test produced a negative result for marihuana and the
substance was entirely consumed during the testing process.
Based upon the green leafy nature of the substance, we are of
the view that it was entirely reasonable to first test it for
the presence of marihuana. Given the negative result and
complete depletion of the substance, we find that the trained
and experienced supervisor was permitted to identify the
substance as synthetic marihuana for the purpose of
supporting the charge of possessing contraband, based upon
having viewed it before it was tested.
and Rumsey, JJ., concur.
McCarthy, J.P. (concurring in part and dissenting in part).
disagree with the majority's conclusion that the record
contains substantial evidence to support the determination
that petitioner is guilty of possessing contraband.
Therefore, we respectfully dissent to the extent that the
majority upholds the finding as to that charge.
was charged with, and found guilty of, possessing contraband
based on the accusation that he possessed synthetic
marihuana. As a general matter, contraband is the possession
of "any item" not "specifically
authorized" (7 NYCRR 270.2 [B]  [xiii]). The
Department of Corrections and Community Supervision
(hereinafter DOCCS) has implemented regulatory provisions
governing instances in which a correction officer finds a
"substance... suspected of being a contraband drug"
(7 NYCRR 1010.4). The regulations clearly delegate the task
of identifying such a substance to specified professionals
who are aided in their efforts by specified drug
identification tests (see 7 NYCRR 1010.4 [d], [e],
[f], [g]). As relevant here, if the substance suspected of
being a contraband drug "has not been conclusively
identified at the facility pharmacy, it shall be tested by
use of the narcotics identification kit... until a positive
or negative result is obtained" (7 NYCRR 1010.4 [e]).
This Court has upheld guilty findings on prison disciplinary
charges for possessing contraband and drugs where drug
testing, consistent with proper procedures, positively
identified a substance as synthetic marihuana (see Matter
of Wendell v Annucci, 149 A.D.3d 1430, 1430-1431 ;
see generally 7 NYCRR 1010.5). The requirements of
this regulatory regime ...