# Matter of King v. Venettozzi > Appellate Division of the Supreme Court of the State of New York · July 27, 2017 · 152 A.D.3d 1115 URL: https://www.frixlaw.com/law-library/cases/9877584 ## Case - **Full name:** In the Matter of Kevin King, Petitioner, v. Donald Venettozzi, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** July 27, 2017 - **Citations:** 152 A.D.3d 1115; 59 N.Y.S.3d 822; 2017 NY Slip Op 5899 - **Precedential status:** Published - **Opinion:** Concurring in part by McCarthy - **Judges:** Aarons, Devine, McCarthy, Rose, Rumsey - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9877584 ## Opinion text McCarthy, J.R (concurring in part and dissenting in part). We disagree with the majority’s conclusion that the record contains substantial evidence to support the determination that petitioner is guilty of possessing contraband. Therefore, we respectfully dissent to the extent that the majority upholds the finding as to that charge. Petitioner was charged with, and found guilty of, possessing contraband based on the accusation that he possessed synthetic marihuana. As a general matter, contraband is the possession of “any item” not “specifically authorized” (7 NYCRR 270.2 [B] [14] [xiii]). The Department of Corrections and Community Supervision (hereinafter DOCCS) has implemented regulatory provisions governing instances in which a correction officer finds a “substance . . . suspected of being a contraband drug” (7 NYCRR 1010.4). The regulations clearly delegate the task of identifying such a substance to specified professionals who are aided in their efforts by specified drug identification tests (see 7 NYCRR 1010.4 [d], [e], [f], [g]). As relevant here, if the substance suspected of being a contraband drug “has not been *1118 conclusively identified at the facility pharmacy, it shall be tested by use of the narcotics identification kit. . . until a positive or negative result is obtained” (7 NYCRR 1010.4 [e]). This Court has upheld guilty findings on prison disciplinary charges for possessing contraband and drugs where drug testing, consistent with proper procedures, positively identified a substance as synthetic marihuana (see Matter of Wendell v Annucci, 149 AD3d 1430, 1430-1431 [2017]; see generally 7 NYCRR 1010.5). The requirements of this regulatory regime do not contemplate that, when the trained professionals fail to identify a suspected contraband drug, a correction officer who is not trained in these matters can offer his or her opinion that the substance is, in fact, a contraband drug so as to support the finding that an inmate is guilty of possessing contraband. Here, the substance obtained from petitioner was not a pill that could be conclusively identified at the facility pharmacy {see 7 NYCRR 1010.4 [d]). A trained officer subjected the substance to a test for marihuana, with a negative result {see 7 NYCRR 1010.4 [e], [f]). Thus, the record contains no evidence that the substance was identified as a contraband drug in accordance with 7 NYCRR 1010.4. Given this failure to identify the substance as a contraband drug in accordance with DOCCS regulations, and further considering the fact that petitioner did not concede that the substance was synthetic marihuana, * the record lacks substantial evidence to support the determination of guilt that petitioner possessed contraband in the form of synthetic marihuana (see Matter of McCaskell v Rodriguez, 148 AD3d 1407, 1408 [2017]; see generally Matter of Cross v Annucci, 131 AD3d 758, 759 [2015]; compare Matter of Wendell v Annucci, 149 AD3d at 1430-1431 ; but see Matter of Oliver v Fischer, 107 AD3d 1268, 1268-1269 [2013]). The supervisor who identified the substance as synthetic marihuana offered no details regarding his training or experience, nor any explanation of how they qualified him to make such an identification. Indeed, he did not testify, so the Hearing Officer was left to rely on a vague and conclusory statement included in a misbehavior report and repeated in a memorandum. Moreover, the quantity of the substance recovered apparently allowed for only one drug test, and the record *1119 indicates that the substance was tested to discover whether it was marihuana. If the supervisor actually had the ability to identify synthetic marihuana and had, in fact, so identified the substance taken from petitioner when the supervisor viewed it before the testing was conducted, there is no explanation as to why he would thereafter have his subordinate use the entirety of the substance in a test for marihuana, which would not indicate a positive or a negative result for synthetic marihuana (compare Matter of Wendell v Annucci, 149 AD3d at 1430-1431 ). Thus, the record contains no evidence that the supervisor was qualified to identify synthetic marihuana, but does contain evidence that leads to an inference that he had, initially, incorrectly identified the substance as marihuana. The Hearing Officer should not have relied on the supervisor’s second guess as to the nature of the substance, supported by nothing other than his own vague and self-serving statement regarding his training and experience. These facts illustrate why DOCCS would not intend for substances that went unidentified pursuant to 7 NYCRR 1010.4 to nonetheless be found to be contraband drugs. Reading 7 NYCRR 1010.4 to permit such a conclusion would promote absurd incentives — if officials intentionally exhausted the supply of a recovered substance by testing for irrelevant drugs, they could then resort to offering the opinion of an untrained correction officer that the substance is a contraband drug for which no test was conducted. In the absence of a concession from an inmate that a substance is a contraband drug, we find that DOCCS intended that contraband drugs be identified by complying with 7 NYCRR 1010.4. We do not rule out the possibility that the testimony of a trained officer may be sufficient to identify such a substance, but the record must establish the officer’s qualifications to make such an identification. The record here does not include such information. The majority, attempting to distinguish our recent decision in Matter of McCaskell v Rodriguez ( 148 AD3d at 1408 ), explains that the inmate in that case was charged with possessing an intoxicant as well as possessing contraband, and the drug testing procedures were not followed. There, we noted that the correction officer who discovered the item believed, based on his or her training and certain statements made by the inmate, that the leafy substance was synthetic marihuana (id.). Errors in the drug testing procedure may have required annulment of the charge regarding possession of an intoxicant, but did not automatically require annulment of the contraband charge. Instead, we held that substantial evidence did not sup *1120 port the latter charge because “the substance at issue was not adequately identified,” notwithstanding the officer’s belief, based on his or her training, regarding the nature of the substance (id,.). Although petitioner here was not charged with violating the rule prohibiting possession of drugs (see 7 NYCRR 270.2 [B] [14] [xv]), but with the one prohibiting possession of contraband (see 7 NYCRR 270.2 [B] [14] [xiii]), the supervisor’s misbehavior report identified the alleged contraband as synthetic marihuana, based only on his “experience and training.” The Hearing Officer, in his disposition finding petitioner guilty of possessing contraband, pointed to the supervisor’s determination that the substance was synthetic marihuana and asserted that possession of synthetic marihuana in that part of the facility created a significant safety issue. No DOCCS employee has asserted that the substance was some type of contraband other than synthetic marihuana. While contraband can include anything that is not “specifically authorized” (7 NYCRR 270.2 [B] [14] [xiii]), the substance here “was not adequately identified,” leaving no basis to classify it as contraband (Matter of McCaskell v Rodriguez, 148 AD3d at 1408 ). As the record lacks substantial evidence to support the charge of possessing contraband, we would modify the determination by annulling so much thereof as found petitioner guilty of that charge. Aarons, J., concurs. Adjudged that the determination is confirmed, without costs, and petition dismissed. As the majority notes, petitioner agreed that a person observing the substance could reasonably believe that it was synthetic marihuana. However, prison disciplinary charges must be supported by substantial evidence; it is irrelevant what petitioner thinks a correction officer could reasonably believe, and an unsubstantiated belief is not sufficient to support charges. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9877584. Public record. Not legal advice.