                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 21, 2016                     522439
________________________________

In the Matter of TREVIS L.
   FUNCHES,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   June 6, 2016

Before:   Lahtinen, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                             __________


     Trevis L. Funches, Napanoch, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondents.

                             __________


      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 a
prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
possession of contraband and smuggling after a leafy substance
wrapped in plastic was found by the correctional facility dentist
on the floor next to the dental chair after petitioner had
received treatment. The leafy substance subsequently tested
positive for amphetamines and was determined to be synthetic
marihuana. Following a tier III disciplinary hearing, petitioner
was found not guilty of smuggling, but guilty of the remaining
                              -2-                522439

charge. This determination was affirmed on administrative appeal
and this CPLR article 78 proceeding ensued.

      Petitioner contends that the determination is not supported
by substantial evidence. Based upon our review of the record, we
agree. The dentist testified that she found the alleged
contraband on the floor, between the dental chair and the
cuspidor, after she had treated petitioner. Although the
correction officer who prepared the misbehavior report testified
that the dentist informed him that she inspects and cleans her
work area between patients, the dentist testified that, while she
did not notice the contraband before treating petitioner, she had
not cleaned the area around the dental chair prior to that time.
Rather, pursuant to the dentist's testimony, the cleaning of the
work area between patients is the responsibility of her
assistant, who did not testify. According to the dentist, she
discovered the contraband because petitioner was the last patient
scheduled that day and she was cleaning up the floor after he
left. Although the dentist testified that petitioner was her
last patient, there was no evidence presented as to how many
other inmates were treated that day or when the area was last
cleaned prior to the discovery of the contraband. In our view,
the possibility that another inmate who was treated prior to
petitioner that day was actually responsible for possessing the
contraband cannot be eliminated. As such, we conclude that a
reasonable inference cannot be made that petitioner possessed the
contraband simply because he was the last patient treated before
its discovery (see generally Matter of Dushock v Prack, 98 AD3d
777, 778 [2012]; Matter of Ganz v Selsky, 34 AD3d 879, 880
[2006]; cf. Matter of Flores v Fischer, 110 AD3d 1302, 1303
[2013], lv denied 22 NY3d 861 [2014]). Accordingly, the
determination is not supported by substantial evidence and must
be annulled.

      Lahtinen, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.,
concur.
                              -3-                  522439

      ADJUDGED that the determination is annulled, without costs,
petition granted and the Commissioner of Corrections and
Community Supervision is directed to expunge all references to
this matter from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
