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In re King

Supreme Court of New York, Third Department

July 27, 2017

In the Matter of KEVIN KING, Petitioner,
DONALD VENETTOZZI, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

          Calendar Date: June 12, 2017

          Kevin King, Collins, petitioner pro se.

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

          Before: McCarthy, J.P., Rose, Devine, Aarons and Rumsey, JJ.


          Rose, J.

         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 the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

         A 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.

         As a 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.

         Petitioner's 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 [2016]). 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 [2016]; Matter of Carter v Fischer, 117 A.D.3d 1262, 1262 [2014]). 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] [14] [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 [2013] [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]).

         Our recent decision in Matter of McCaskell v Rodriguez (148 A.D.3d 1407, 1408 [2017]) 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 [2017]; Matter of Cross v Annucci, 131 A.D.3d 758, 759 [2015]). 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.

          Devine and Rumsey, JJ., concur.

          McCarthy, J.P. (concurring in part and dissenting in part).

         We 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.

         Petitioner 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] [14] [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 [2017]; see generally 7 NYCRR 1010.5). The requirements of this regulatory regime ...

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