                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    520267
________________________________

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


Calendar Date:   June 8, 2015

Before:   Peters, P.J., McCarthy, Garry and Clark, JJ.

                             __________


     Mark Cross, Ossining, 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 which found petitioner
guilty of violating certain prison disciplinary rules.

      During an inspection of a trailer that had just been used
by petitioner as part of the family reunion program, two balls of
aluminum foil were discovered, each of which contained several
white tablets that were later identified as acetaminophen and
hydrocodone. As a result, petitioner was charged in two
misbehavior reports with possessing unauthorized medication,
possessing contraband, possessing a controlled substance,
smuggling and violating family reunion program procedures. The
misbehavior reports were subsequently combined for the purposes
of the tier III disciplinary hearing, following which petitioner
                              -2-                520267

was found guilty as charged. The determination was affirmed on
administrative appeal, and this CPLR article 78 proceeding
ensued.

      Initially, the Attorney General concedes, and we agree,
that, because the charges contained in the misbehavior reports
are identical and arose out of the same incident, the charges in
the second misbehavior report are duplicative and should have
been dismissed. Concerning the first misbehavior report, the
evidence presented was insufficient to establish compliance with
the regulation governing the identification of substances
suspected of being contraband drugs. When "the substance is in
tablet or capsule form, it shall be inspected at the facility
pharmacy for possible identification" (7 NYCRR 1010.4 [d]). The
evidence establishes that the only pharmacy employee to have
identified the substance as contraband drugs was a nurse who did
so solely based on an examination of photographs of the tablets.
The unambiguous mandate of 7 NYCRR 1010.4 (d) requires inspection
of the substance, and it does not permit an inspection of a
depiction of the substance. Accordingly, the identification
procedure did not comply with 7 NYCRR 1010.4 (d). In the absence
of evidence that the tablets were identified as contraband drugs
pursuant to proper procedure, substantial evidence does not
support the findings of guilt regarding the first misbehavior
report, all of which depended on the identification of the
tablets (see Matter of Sanabria v Annucci, 123 AD3d 1328, 1330
[2014]). Petitioner's remaining contentions are rendered
academic by the foregoing.

     Peters, P.J., McCarthy, Garry and Clark, JJ., concur.
                              -3-                  520267

      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
