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DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED.

The Second Department determined the finding petitioner had used marijuana was not supported by the evidence. The hearing officer stipulated to the petitioner’s claim that the medication he was taking produced false positive results for marijuana. The corrections officer’s testimony that he smelled marijuana near where the petitioner was standing was not enough. Petitioner was standing outside with others at the time:

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Since the hearing officer stipulated that the petitioner’s medication produces false positives for cannabinoids in urinalysis tests, and since no evidence was submitted to contradict the petitioner’s evidence, the positive urinalysis tests results were of little probative value in establishing that the petitioner used cannabinoids. While the correction officer’s observations were sufficient to raise suspicion that the petitioner had violated the prison disciplinary rule, they were not adequate to reasonably support the conclusion that the petitioner had, in fact, violated the rule, especially since the correction officer’s detection of the marijuana odor was made outdoors where there were other inmates in the immediate vicinity of the petitioner. Accordingly, we find that the hearing officer’s determination was not supported by substantial evidence. Matter of Jackson v Annucci, 2017 NY Slip Op 03178, 2nd Dept 4-26-17

DISCIPLINARY HEARINGS (INMATES) (DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED)/MARIJUANA (DISCIPLINARY HEARINGS, INMATES, DETERMINATION THAT PETITIONER USED MARIJUANA WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED, RECORD EXPUNGED)

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“BEST EVIDENCE RULE” CRITERIA EXPLAINED; NOT MET HERE.

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