THE SUBSTANCE FOUND ON PETITIONER-INMATE’S PERSON WAS NOT TESTED OR OTHERWISE IDENTIFIED AS A DRUG; THE DRUG POSSESSION AND DISTRIBUTION, AS WELL AS THE SMUGGLING, DETERMINATIONS ANNULLED (THIRD DEPT).

The Third Department, held the drug possession and distribution, as well as the smuggling, determinations should be annulled. A drug sniffing dog alerted to a substance on petitioner-inmate’s person but no testing or other identification of the substance was done:

At the prison disciplinary hearing, it was established that the suspected substance was not subjected to chemical testing, nor was there any evidence indicating that facility pharmacy or nursing staff inspected or visually identified the substance ,,, . Rather, the substance was visually identified as synthetic marihuana by the OSI K-9 officer. However, the regulation does not authorize an OSI officer to identify suspected substances as drugs. Similarly, testimony regarding the K-9 alerting to petitioner’s groin area did not suffice to comply with the regulation. While there was testimony that petitioner admitted that he possessed K2, this would, at most, establish a charge of possession of contraband, but not drug possession. Unlike a drug-related disciplinary charge, which requires compliance with the aforementioned identification procedures … , the prohibition on contraband merely depends on whether or not an item is authorized … . In light of the lack of compliance with regulatory procedures, the identity of the substance was not properly established …

As for the remaining charge of smuggling, this charge only requires that “any item” be smuggled in or out of the facility or from one area to another … , and does not require proof that the item was a drug or contraband. However, in finding petitioner guilty of this charge, the Hearing Officer expressly based his finding on the OSI K-9 officer’s conclusion that the substance was synthetic marihuana, and therefore must have been smuggled in from outside the facility. As noted above, this conclusion was flawed. Given that, and because there was no proof at the hearing that the substance in question was moved from one area to another, the finding as to this charge is also unsupported by substantial evidence and must be annulled. Matter of Then v Annucci, 2023 NY Slip Op 01037, Third Dept 2-23-23

Practice Point: The substance must be tested or otherwise identified by a professional as a drug before a drug possession or distribution determination against an inmate will be upheld.