State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 18, 2014 518842 

________________________________

In the Matter of CHRISTINA 

SANABRIA,

Petitioner,

v

MEMORANDUM AND JUDGMENT

ANTHONY J. ANNUCCI, as Acting 

Commissioner of Corrections 

and Community Supervision, 

et al.,

Respondents.

________________________________

Calendar Date: October 21, 2014

Before: Lahtinen, J.P., McCarthy, Egan Jr., Lynch and 

 Clark, JJ.

__________

Christina Sanabria, Bedford Hills, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H.

Schiff 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 Superintendent of Bedford

Hills Correctional Facility which found petitioner guilty of

violating certain prison disciplinary rules.

Petitioner was observed tucking an item, which proved to be

a balled up piece of paper containing two yellow pills, into her

pants while she was being pat frisked. The pills were identified

by a pharmacist as Clonidine, a medication used for pain and to

alleviate symptoms of opiate withdrawal. Petitioner was charged

in a misbehavior report with violating various prison
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disciplinary rules and, following a tier II disciplinary hearing,

was found guilty of possessing unauthorized medication and

smuggling. The determination was affirmed in relevant part upon

administrative appeal, prompting petitioner to commence this CPLR

article 78 proceeding. 

Petitioner contends that she was not provided with the

necessary documentation to support the identification of the drug

as Clonidine and, thus, the determination is not supported by

substantial evidence. Substantial evidence supports the

determination of guilt with regard to the smuggling charge, to

which the documentation requirements of 7 NYCRR 1010.5 do not

apply (see Matter of Harrison v Fischer, 104 AD3d 1032, 1033

[2013]; Matter of Quartieri v New York State Dept. of

Correctional Servs., 70 AD3d 1071, 1072 [2010]). The Hearing

Officer was free to credit the factually specific allegations in

the misbehavior report regarding petitioner's efforts to hide

items during a pat frisk, and her denials created a credibility

question for the Hearing Officer to resolve (see Matter of Belot

v Selsky, 47 AD3d 1149, 1149 [2008]; Matter of Ermmarino v New

York State Dept. of Correctional Servs., 43 AD3d 517, 517-518

[2007]).

The determination of guilt with regard to possessing

unauthorized medication, however, cannot stand. The procedure to

be followed when a suspected contraband drug is found dictates

that correction officials prepare "a request for test of

suspected contraband drugs" and that "[e]ach person handling the

suspected substance shall make an appropriate notation on the

form to document . . . the chain of custody of the substance

until it is identified" (7 NYCRR 1010.4 [b]). Petitioner sought

a copy of the request form with proof of chain of custody and,

indeed, sought to have the charges against her dismissed because

that document had not been provided to her. Despite her

complaints, the Hearing Officer made no effort to obtain either

the request form or any other proof to establish the chain of

custody. Although the fact that a pharmacist "visually

identified the pills" rendered it unnecessary to provide proof of

chemical testing, foundational evidence regarding the chain of

custody of those pills was still required (Matter of Campbell v

Prack, 118 AD3d 1202, 1203 [2014]; see 7 NYCRR 1010.4 [d], [e];
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Matter of Lindsay v Coughlin, 211 AD2d 920, 921 [1995]). 

Inasmuch as "no evidence to substantiate the chain of custody"

was provided, substantial evidence does not support the

determination of guilt with regard to the unauthorized medication

charge (Matter of Price v Coughlin, 116 AD2d 898, 899 [1986]; see

Matter of Peralta v Artuz, 272 AD2d 330, 331 [2000). Remittal

for a redetermination of the penalty is not required, as

petitioner has already served the penalty imposed and no loss of

good time was involved (see Matter of Fields v Prack, 120 AD3d

1510, 1511 [2014]).

Lahtinen, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.,

concur.

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

possessing unauthorized medication; petition granted to that

extent and respondent Superintendent of Bedford Hills

Correctional Facility is directed to expunge all references to

this charge from petitioner's institutional record; and, as so

modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court