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INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT).

The Third Department, annulling the disciplinary determination, found that the misbehavior determination was not supported by substantial evidence. Petitioner was charged with attempting to mail gang related information. But there was no evidence connecting petitioner to the relevant documents:

… [T]he documentary evidence attached to the misbehavior report and submitted to this Court for in camera review consisted solely of three typewritten pages, which did not have any features or content that could identify petitioner as the author or sender, and did not include the envelope in which the pages were allegedly discovered … . The testimony given by the investigating correction officer, together with the statements that he made in the misbehavior report, established only that the three typewritten pages were forwarded to him from the mail room as mail that petitioner had attempted to send. The investigating correction officer did not testify to having any personal knowledge that petitioner was the sender of those pages. A mail room supervisor testified that, although she was aware that petitioner was the subject of a mail watch at one time, she could not recall the actual incident, and she did not offer any testimony that linked petitioner to the pages at issue… . Further, petitioner did not admit ownership of the documents or otherwise connect himself to them … . To the contrary, petitioner maintained his innocence throughout the administrative proceeding and asserted that he was being retaliated against for having lodged grievances against the mail room staff. In the absence of evidence connecting petitioner to the three typewritten pages, the underlying determination of guilt is not supported by substantial evidence … . Matter of Telesford v Annucci, 2018 NY Slip Op 07397, Third Dept 11-1-18

DISCIPLINARY HEARINGS (INMATES) (INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))/EVIDENCE (DISCIPLINARY HEARINGS (INMATES), INSUFFICIENT EVIDENCE CONNECTING THE INMATE TO THE DOCUMENTS CONTAINING GANG RELATED INFORMATION, MISBEHAVIOR DETERMINATION ANNULLED (THIRD DEPT))

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF... IN A CLOSE CASE THE SECOND DEPT HELD DEFENDANT VALIDLY WAIVED HIS RIGHT TO APPEAL,...