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FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT).

The Third Department determined the finding that petitioner possessed a weapon which was found in a cube shared with other inmates was not supported by substantial evidence:

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Petitioner denied any knowledge of the weapon, and the record reflects that he shared the cube with other inmates. The cube was separated by a divider into two living areas, with petitioner and another inmate sharing one side and at least one other inmate housed on the other side. The correction officer who authorized the search, and was present when the weapon was found, testified that the weapon was discovered under the center of the divider. According to the officer, all the inmates housed in the cube had access to that area because the divider was movable and it could be easily lifted. The correction officer who discovered the weapon testified that it was located closer to the side of the divider where petitioner and another inmate were housed and that it would have been more difficult for inmates housed on the other side of the divider to place the weapon there. There is no evidence in the record to support a finding that petitioner possessed the weapon and, in our view, the evidence presented does not eliminate either the inmates housed on the other side of the divider or the inmate who shared petitioner’s side from being responsible for possessing it. Further, under the circumstances presented here, “we do not believe that a reasonable inference can be made that petitioner possessed this contraband simply because he had access to the area where the contraband was found and that it, to some extent, was under his control” … . Matter of Carter v Annucci, 2018 NY Slip Op 00501, Third Dept 1-25-18

DISCIPLINARY HEARINGS (FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT))

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