| Matter of Warren v Goord |
| 2008 NY Slip Op 02708 [49 AD3d 1099] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of Vincent Warren, Petitioner, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Peters, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Chemung County) to review a determination of respondent whichfound petitioner guilty of violating certain prison disciplinary rules.
At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of possessing aweapon and smuggling. Following an unsuccessful administrative appeal, petitioner commencedthis CPLR article 78 proceeding challenging the determination.
The record establishes that petitioner allegedly caused a metal detector to sound prior to avisit. After a strip frisk revealed nothing, authorization was obtained for an X ray, which showedthat petitioner had a foreign object in his abdomen. According to the escorting correction officer,petitioner admitted that the object was a razor. As a result, a misbehavior report was issued,charging petitioner with smuggling and possession of a weapon.
At the disciplinary hearing, the Hearing Officer agreed to disregard the X ray evidence, aswell as any testimony by the doctors who interpreted the X rays, because one doctor wasunavailable to testify as he was no longer employed by the Department of Correctional Services.[*2]Thus, the Hearing Officer based the determination of guilt ononly the misbehavior report and the testimony of the correction officer who authored it.
However, the record also reveals that, after the initial X ray, petitioner was isolated in aone-on-one contraband watch cell. Eventually a piece of plastic was discovered in hisfeces[FN*]and a subsequent X ray confirmed that no other foreign objects remained in petitioner's body. Asno razor was ever recovered and there was no proof that the piece of plastic recovered was an"item that may be classified as a weapon or dangerous instrument by description, use orappearance" (7 NYCRR 270.2 [B] [14] [i]), we conclude that the determination finding himguilty of possessing a weapon is not supported by substantial evidence (see Matter of Ganz v Selsky, 34 AD3d879, 880 [2006]; Matter of Williams v Selsky, 307 AD2d 571, 571 [2003]). Nor isthere substantial evidence to support the smuggling charge.
Accordingly, the determination must be annulled with all references thereto expunged frompetitioner's institutional record.
Mercure, J.P., Rose, Kane and Malone Jr., JJ., concur. Adjudged that the determination isannulled, without costs, petition granted and respondent is directed to expunge all references tothis matter from petitioner's institutional record.
Footnote *: Petitioner was charged in asecond misbehavior report with an unhygienic act and contraband possession after petitionerallegedly placed his feces containing the plastic wrap on his feed-up tray. Although petitionerasserts that these charges were subsequently dismissed, that contention is not verifiable on thisrecord.