                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 2, 2017                   523357
________________________________

In the Matter of CAROLYN
   WARMUS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   November 29, 2016

Before:   Peters, P.J., Rose, Devine, Clark and Aarons, JJ.

                             __________


     Carolyn Warmus, Bedford Hills, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
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 certain prison disciplinary rules.

      Petitioner, an inmate at the Bedford Hills Correctional
Facility in Westchester County, was the chairperson of an
authorized program that was operated by inmates to sell certain
products to other inmates within the correctional facility.
During a search of petitioner's cell, correction officials found
documentation referencing key rings and key numbers relevant to
lockers used in the program. This prompted correction officials
to conduct a search of the program lockers where they found,
among other things, blank key lock request forms that were
                              -2-                523357

apparently used to initiate locksmith work orders. As a result
of this finding, petitioner was charged in a misbehavior report
with various disciplinary rule violations. Following a tier III
disciplinary hearing, she was found guilty of possessing property
in a prohibited area, possessing contraband and smuggling. After
the determination was affirmed on administrative appeal,
petitioner commenced this CPLR article 78 proceeding.

      Petitioner raises a number of claims, including a challenge
to the sufficiency of the evidence supporting the determination
of guilt. Significantly, as was established at the hearing, the
basis of the finding of guilt of the charges of possessing an
article in a prohibited area (see 7 NYCRR 270.2 [B] [14] [xii]),
possessing contraband (see 7 NYCRR 270.2 [B] [14] [xiii]) and
smuggling (see 7 NYCRR 270.2 [B] [15] [i]) was the discovery of
the blank key lock request forms, believed to belong to
petitioner, in one of the program lockers. However, the
testimony of the program staff supervisor revealed that other
inmates, particularly those involved in the program, had, with
the assistance of security staff, access to the lockers in
question. Notably, there was no testimony from any witnesses who
observed petitioner place the forms in the locker and the
testimony of the deputy security superintendent, who partially
oversaw the program, was unenlightening. Consequently, inasmuch
as the evidence does not support the reasonable inference of
possession, we conclude that substantial evidence does not
support the determination of guilt (see Matter of Funches v New
York State Dept. of Corr. & Community Supervision, 141 AD3d 1006,
1007 [2016]; Matter of Dushock v Prack, 98 AD3d 777, 778 [2012]).
In view of our disposition, we need not address petitioner's
remaining claims.

     Peters, P.J., Rose, Devine, Clark and Aarons, JJ., concur.
                              -3-                  523357

      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
and restore any loss of good time.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
