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EVIDENCE PETITIONER HAD ACCESS TO THE AREA WHERE THE CONTRABAND WAS FOUND WAS NOT SUFFICIENT TO DEMONSTRATE PETITIONER’S POSSESSION OF THE CONTRABAND (THIRD DEPT).

The Third Department, annulling the misbehavior determination, found that the evidence petitioner possessed contraband was insufficient. The fact that petitioner had access to the area where the contraband was found was not enough. A lock pick had been found in a door mechanism:

The correction officer who served as the facility’s locksmith testified that the lock pick did not belong to him and that, because the lock pick was observed to be dirty, the lock pick had probably been in the tracking of the cell door for a while prior to its discovery. The Hearing Officer accepted as true petitioner’s testimony that he had initially complained that the cell door would not close and that the door had been opened and closed numerous times without a problem on the day in question. We find significant petitioner’s testimony that he alerted facility staff to the malfunctioning door and the locksmith’s testimony suggesting that the lock pick had most likely been hidden in the tracking of the cell door for an extended period of time and prior to petitioner’s occupation of the cell … . In our view, these circumstances do not permit a reasonable inference that petitioner possessed the contraband simply because he might have had access to the area where the contraband was found and that it, to some extent, was under his control … . Matter of Perez v Annucci, 2018 NY Slip Op 01521, Third Dept 3-8-18

DISCIPLINARY HEARINGS (INMATES) EVIDENCE PETITIONER HAD ACCESS TO THE AREA WHERE THE CONTRABAND WAS FOUND WAS NOT SUFFICIENT TO DEMONSTRATE PETITIONER’S POSSESSION OF THE CONTRABAND (THIRD DEPT))

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