IN RE: Keith PLUMMER (1997)

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was found guilty of violating the prison disciplinary rule prohibiting the theft of State property.   This finding was predicated upon the misbehavior report which stated that Correction Lieutenant Pedro Berrios encountered petitioner and inmate R. Washington in the lobby of the mess hall.   Washington immediately approached Berrios and engaged him in an unfocused conversation while petitioner entered the inmate bathroom.   During the conversation, Washington kept looking over his shoulder toward the bathroom and, when petitioner exited, terminated his conversation with Berrios.   Because his suspicions were aroused by Washington's behavior, Berrios ordered the bathroom searched.   Found therein was a quantity of onions, rice and flour.   Although there is no direct proof that petitioner stole these items, his theft of them could be established circumstantially by proof of his recent and exclusive possession of the stolen items (1 Mottla, New York Evidence Proof of Cases § 835, at 776-777 [2d ed] ).   Such proof is lacking in this instance since the record evidence shows that a number of inmates had access to the inmate bathroom and that, because of a broken lock, anyone could have had access to the area in the mess hall where the items were stored.   Therefore, we conclude that respondent's determination is not supported by substantial evidence.   Consequently, it is annulled.

ADJUDGED that the determination is annulled, without costs, petition granted, respondent is directed to expunge all references to the charge and proceedings from petitioner's institutional records and restore restitution in the amount of $11.32 to petitioner.

MEMORANDUM DECISION.