                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 6, 2015                    519944
________________________________

In the Matter of RAMION BURT,
                    Petitioner,
      v

ANTHONY J. ANNUCCI, as Acting               MEMORANDUM AND JUDGMENT
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   June 8, 2015

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

                             __________


     Ramion Burt, Gowanda, 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.

      A correction officer observed petitioner in the shower
smoking what appeared to a cigarette. The officer confiscated
the cigarette and observed that it did not contain tobacco. When
he asked petitioner what was in the cigarette, petitioner
allegedly told the officer that it was synthetic marihuana. The
contents later tested negative for marihuana, but produced a
false-positive result for amphetamines. As a consequence of this
incident, petitioner was charged in a misbehavior report with
smoking, possessing an intoxicant and possessing contraband. He
was found guilty of the charges following a tier III disciplinary
                              -2-                519944

hearing and the determination was later affirmed on
administrative appeal. This CPLR article 78 proceeding ensued.

      Initially, petitioner is precluded by his plea of guilty
from challenging that part of the determination finding him
guilty of smoking (see Matter of Smith v Annucci, 126 AD3d 1198,
1198 [2015]; Matter of Fields v Prack, 120 AD3d 1510, 1511
[2014]). Moreover, the misbehavior report, related documentation
and testimony presented at the hearing provide substantial
evidence supporting petitioner's guilt of the charge of
possessing contraband (see Matter of Curry v Fischer, 113 AD3d
981, 982 [2014]; Matter of Oliver v Fischer, 107 AD3d 1268, 1268-
1269 [2013]).

      We reach a different conclusion, however, with respect to
the charge of possessing an intoxicant as proscribed by 7 NYCRR
270.2 (B) (14) (iii). That disciplinary rule states that "[a]n
inmate shall not make, use, possess, sell, exchange, provide or
be under the influence of any alcoholic beverage or intoxicant"
and further provides that "[p]ossession, sale or exchange of
yeast or any other fermenting agent is prohibited" (7 NYCRR 270.2
[B] [14] [iii]). Here, petitioner was not found to be in
possession of alcohol or any other ingredient used to produce an
intoxicating beverage. In addition, the urinalysis test
administered to him did not test positive for alcohol or any
other controlled substance (compare Matter of Campbell v Prack,
100 AD3d 1173, 1173 [2012]). Although correction officials
believed that the substance in the cigarette was synthetic
marihuana, this could not be confirmed through independent
testing, as there was no testing system that could identify this
particular substance. In view of the foregoing, we find that
there is no evidence in the record to establish that the
substance was an intoxicant within the meaning of the above
disciplinary rule. Therefore, the determination of guilt with
respect to this charge must be annulled. Moreover, inasmuch as a
loss of good time was imposed as part of the penalty, the matter
must be remitted to respondent for a redetermination of the
penalty on the remaining charges (see Matter of Lopez v New York
State Dept. of Corr. & Community Supervision, 125 AD3d 1032, 1033
[2015]; Matter of Nylander v Prack, 123 AD3d 1336, 1337 [2014]).
Petitioner's other contentions have been considered and are
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lacking in merit.

     Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of
possessing an intoxicant and imposed a penalty; petition granted
to that extent, respondent is directed to expunge all references
to this charge from petitioner's institutional record, and matter
remitted to respondent for an administrative redetermination of
the penalty on the remaining violations; and, as so modified,
confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
