                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   518991
________________________________

In the Matter of MIGUEL A.
   SANTIAGO,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ROBERT F. CUNNINGHAM, as
   Superintendent of Woodbourne
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Peters, P.J., Lahtinen, McCarthy, Garry and Devine, JJ.

                             __________


     Miguel A. Santiago, Woodbourne, 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 Sullivan County)
to review a determination of respondent which found petitioner
guilty of violating a prison disciplinary rule.

      During the search of a refrigerator shared by multiple
inmates, a correction officer found a net bag belonging to
petitioner that contained food items that had been stolen from
the kitchen. As a result, petitioner was charged in a
misbehavior report with smuggling, stealing, wasting food and
possessing stolen property. Following a tier II disciplinary
hearing, he was found guilty of possessing stolen property. The
determination was later affirmed on administrative appeal and
this CPLR article 78 proceeding ensued.
                              -2-                  518991

      Upon reviewing the record, we do not find that the
determination is supported by substantial evidence. Petitioner
testified that he gave another inmate permission to put food in
his net bag and that he had no idea what the inmate put in there.
The inmate who put the food in petitioner's net bag corroborated
petitioner's story and indicated that he did not disclose what he
had put in the bag. Under these circumstances, there is no
evidence to establish that petitioner intended to possess stolen
property or had any knowledge that the property was stolen (see
Matter of Garofolo v Cunningham, 34 AD3d 1071, 1072-1073 [2006];
Matter of Whitfield v Fischer, 291 AD2d 504, 504-505 [2002];
compare Matter of Tusa v Bezio, 70 AD3d 1159, 1159 [2010]).
Accordingly, the determination must be annulled.

      Peters, P.J., Lahtinen, McCarthy, Garry and Devine, JJ.,
concur.



      ADJUDGED that the determination is annulled, without costs,
petition granted, and respondent is directed to expunge all
references thereto from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
