Matter of King v. Venettozzi , 152 A.D.3d 1115 ( 2017 )

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 AD3d 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 AD3d 1511, 1512 [2016]; Matter of Carter v Fischer, 117 AD3d 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 AD3d 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 AD3d 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 AD3d 1430, 1430 [2017]; Matter of Cross v Annucci, 131 AD3d 758, 759 [2015]). Here, unlike Mc-Caskell, 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.