State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 521593 

________________________________

In the Matter of NASER DERTI,

Petitioner,

v

ANTHONY J. ANNUCCI, as Acting MEMORANDUM AND JUDGMENT

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: October 25, 2016

Before: Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.

__________

Greenberg Traurig, LLP, Albany (William A. Hurst of

counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Treasure of counsel), for respondent.

__________

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 respondent finding petitioner guilty of

violating a prison disciplinary rule.

Prison officials were tipped off that contraband could be

found in petitioner's cell, and the ensuing search recovered a

cellular phone, SIM card and battery secreted inside the steel

channel stock next to his cell gate. An inmate misbehavior

report was issued and, following a tier III disciplinary hearing,

petitioner was found guilty of possessing contraband. 

Petitioner's administrative appeal was unsuccessful, and he

thereafter commenced this CPLR article 78 proceeding. 
-2- 521593 

Substantial evidence does not support the determination

and, as such, we annul. The author of the misbehavior report

testified as to the difficulty of reaching the hidden cellular

phone inside the column and stated that it could only be put

there from inside petitioner's cell. Accordingly, while

petitioner's cell was often left open and could be accessed by

other inmates, the contraband was found in an area so under

petitioner's control that a reasonable inference could ordinarily

be made that he possessed it (see Matter of Velez v Prack, 122

AD3d 1041, 1041-1042 [2014]; Matter of Turner v Fischer, 95 AD3d

1026, 1026 [2012]; Matter of Jimenez v Fischer, 87 AD3d 771, 771

[2011]). 

That being said, the occupant of a nearby cell had occupied

petitioner's cell several months prior. Petitioner alleged that

the other inmate had already been investigated for possessing a

cellular phone and argued that the other inmate could have hidden

the contraband in petitioner's cell, either when the other inmate

occupied the cell or after he was moved. The disciplinary

hearing featured the testimony of the correction officer who

investigated petitioner's case and who, far from dispelling those

concerns, stated that he had interviewed the other inmate and had

not yet determined to whom the phone belonged. Petitioner

further requested that the calling records of the cellular phone

be considered to aid in identifying who had actually used it, but

the Hearing Officer rebuffed that request in conclusory fashion

by stating that the records were "confidential" (see Matter of

Hillard v Coughlin, 187 AD2d 136, 139-140 [1993], lv denied 82

NY2d 651 [1993]). In our view, the foregoing does not permit "a

reasonable inference . . . that petitioner possessed this

contraband simply because he had access to the area where the

contraband was found and that it, to some extent, was under his

control" (Matter of Dushock v Prack, 98 AD3d 777, 778 [2012]; see

Matter of Funches v New York State Dept. of Corr. & Community

Supervision, 141 AD3d 1006, 1006-1007 [2016]; Matter of Price v

Phillips, 4 AD3d 364, 365 [2004]). Thus, in the absence of any

proof tying the contraband to petitioner, the determination is

not supported by substantial evidence and must be annulled. 

Petitioner's remaining contentions are academic.

Peters, P.J., Garry, Rose, Devine and Mulvey, JJ., concur.
-3- 521593 

ADJUDGED that the determination is annulled, without costs,

petition granted and respondent is directed to expunge all

references to this matter from petitioner's institutional record.

ENTER:

Robert D. Mayberger

Clerk of the Court