                          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
