Petitioner failed to establish that respondent, a captain, engaged in undue familiarity by retrieving an envelope containing narcotics contraband from the prison cell of one person in custody and delivering it to another person in custody. ALJ recommends dismissal of the charges. REPORT AND RECOMMENDATION — REVISED Petitioner, the Department of Correction (“Department”), brought this employee disciplinary proceeding against respondent, Captain Richmond Amaning, under section 75 of the Civil Service Law. Civ. Serv. Law §75 (Lexis 2024). Petitioner charged respondent with engaging in undue familiarity, failing to maintain the security and good order of the facility, and engaging in conduct unbecoming an officer and of a nature to bring discredit upon the Department by retrieving narcotics contraband from the prison cell of one incarcerated person and delivering it to another (ALJ Ex. 1). Respondent denies the charges. At a three-day trial held before me by videoconference on August 1, 6, and 13, 2024, petitioner relied upon audio and video evidence, testimony of the Department’s investigator Cesaire Smith, and documentary evidence. Respondent testified on his own behalf and presented documentary evidence. I find that petitioner failed to establish the charges by a preponderance of the evidence and recommend dismissing the charges. ANALYSIS Petitioner alleges that on August 31, 2023, at approximately 4:54 p.m., in housing area 15 of the Rose M. Singer Center (“RMSC”), respondent “pick[ed] up an envelope containing contraband, namely, cigarettes and K2,”1 from the prison cell of person in custody Justin Valentine and delivered it to person in custody Tysean Devonish. Petitioner further alleges that Valentine and Devonish confirmed this delivery arrangement in a series of phone calls during which they spoke “in code” and explained the events as they unfolded, and a person in custody says on a call, “Thanks Amaning” (ALJ Ex. 1). Petitioner has the burden of proving the charges by a preponderance of the credible evidence. See Dep’t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), adopted, Comm’r Dec. (Nov. 2, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-33-SA (May 30, 2008). Preponderance has been defined as “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.” Prince, Richardson on Evidence §3-206 (Lexis 2008); see Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602, 622 (1993). “If the evidence is equally balanced, or if it leaves the [trier of fact] in such doubt as to be unable to decide the controversy either way, judgment must be given against the party upon whom the burden of proof rests.” Prince, Richardson on Evidence §3-206; see Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, 196 (1976); see also Dep’t of Correction v. Stoudymire, OATH Index No. 1367/13 at 9 (Sept. 20, 2013) (dismissing charges on grounds that petitioner failed to prove correction officer’s correspondence with person in custody was unauthorized and engaging in undue familiarity). Petitioner relied primarily on the following evidence: (1) audio recordings of phone calls purportedly made by Valentine and Devonish on August 31, 2023, pertaining to the contraband transport, with corresponding call detail reports generated by Smith; (2) preserved surveillance video footage of the pertinent RMSC areas on August 31, 2023, from approximately 4:15 p.m. to 5:15 p.m.; and (3) Smith’s investigatory documents, including his findings and conclusions, and his testimony. Petitioner’s evidence, however, failed to connect the phone calls pertaining to the contraband delivery with the video of respondent’s activities on August 31, 2023, that petitioner asserts shows respondent transporting contraband for Devonish (Tr. 329). The video evidence is equivocal and does not show respondent transporting the alleged contraband. Furthermore, petitioner relied solely on Smith’s investigation and testimony to establish its case, but Smith’s investigation was flawed. And Smith’s testimony regarding certain material facts was incredible as his statements were either inconsistent or contradictory with his investigatory reports, and he did not articulate or provide reliable evidentiary support for some of the investigatory findings upon which he based his conclusions. See, e.g., Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998) (in assessing witness credibility, relevant considerations include demeanor, consistency of testimony, supporting evidence, witness motivation, bias or prejudice, and whether testimony comports with common sense and human experience). Thus, as more fully discussed below, I find that petitioner has failed to meet its burden. Petitioner’s Evidence This case arose from a “contraband interdiction investigation” conducted by Smith, who is part of the Special Investigations Unit (“SIU”) (Pet. Ex. 1; Tr. 21, 100). Smith joined the Department as a correction officer in 2015 and became an investigator in 2018 (Tr. 21-22). Smith joined SIU in April 2023, and received criminal investigation training with the Internal Affairs Bureau, New York Police Department, and the Department of Justice (Tr. 98-99). At SIU, he conducted approximately five substantive investigations with one case resulting in a formal charge (Tr. 101). Devonish was incarcerated at RMSC’s Enhanced Security Housing (“RESH”), a facility for highly violent individuals. Smith testified that Devonish has a history of involving correction officers in transporting narcotics for him (Pet. Ex. 1; Tr. 23-24, 52). In June 2023, Smith caught an officer at a different facility transporting contraband between housing areas by listening to Devonish’s phone calls. Since then, he began to monitor all of Devonish’s phone calls using Securus, a phone monitoring system on the Department’s intranet that records incarcerated persons’ phone calls (Pet. Ex. 1; Tr. 23, 26, 42, 51). On September 20, 2023, while listening to calls made on August 31, 2023, Smith believed he heard Devonish organize a contraband pickup at RESH (Tr. 23-25, 106). It is undisputed that no contraband was recovered in this case (Tr. 198, 202). Petitioner introduced three Securus recorded audios of phone calls that Smith considered relevant to this case (Pet. Exs. 3A, 3B, 3C; Tr. 42, 52-53).2 It is undisputed that these calls are from August 31, 2023. The recordings however do not provide the call times nor are the full names of the callers mentioned on the calls, but Smith testified that he was able to identify the men by their voices. Smith said he was familiar with Devonish’s voice and the voices of the people with whom he speaks on the phone from monitoring over 100 of Devonish’s phone calls (Tr. 45, 49-50). In 2023, “some months prior” to this case, he also spoke with Devonish in person for three to five minutes in connection with another contraband-related investigation at RESH (Tr. 55-56). Based on Smith’s extensive exposure to Devonish’s voice in phone calls for an extended period, I credited his ability to recognize Devonish’s voice on the calls. In contrast, Smith admitted he never spoke with Valentine in person and only became familiar with Valentine while investigating this case, which lasted a little over a week (Tr. 45, 57, 109). I was not convinced that Smith could recognize Valentine’s voice and, in the absence of any corroborating evidence, do not credit his testimony regarding calls he attributed to Valentine. Securus Recorded Phone Calls The phone calls are difficult to understand because the speakers use “slang” terms (Tr. 103). Smith testified that he learned the meaning of these terms over the years by asking experts in the gang intelligence unit at the Correction Intelligence Bureau and, during trial, explained the meaning of these terms used in the phone conversations (Tr. 103-04). The recordings contained background noise that interfered with the sound quality at times and the individuals speaking were often speaking fast, making it difficult to comprehend what is being said. Much of the audible portions of the recorded phone calls are not relevant to this case as they are conversations about matters seemingly unrelated to contraband transport. First Securus Recorded Phone Call (Pet. Ex. 3A) The audio of the first Securus recorded phone call is approximately 14 minutes and 45 seconds (Pet. Ex. 3A). Other indiscernible male voices are heard in the background of the audio. At times Devonish is talking to other males who appear to be in his vicinity and not with the female on the call (Id.). The conversation begins as follows: Female: Nothing, just that they didn’t go to rec either. Devonish: I know that. I’m sending canine. * * * Female: He says tomorrow morning but I did tell him that canine coming. Devonish: He said tomorrow, oh no, send the canine…. I’m not waiting ’till tomorrow…. Ask if he’s on the phone. What time is it right now? Female: He said he got to tomorrow if anything. (Id. at 0:00:51-0:00:58, 0:01:12-0:01:42). Smith testified that “canine” (or “K9″) means “an officer” (Tr. 69). The audio continues with other indistinct male voices talking with Devonish. But then, the female interjects and says, “She said she can’t pick up because she’s on the phone. So what did you want to say?” (Pet. Ex. 3A at 0:02:32-0:02:36). Devonish is heard repeating this message from the female to others around him (Id. at 0:02:37-0:02:39). Then the following conversation ensues, in relevant part: Devonish: Tell him the cab on the way…right now. Female: All right. The cab on the way. What? Devonish: The cab on the way…he’s sturdy…give him everything. * * * Devonish: Yo, make sure it’s sturdy. Make sure it’s sturdy. Put some cereals on. Put it in a cereal. Make sure it’s sturdy. And give it to the canine. * * * Female: She didn’t respond back yet. (Id. at 0:02:43-0:03:02, 0:03:14-0:03:22, 0:03:44-0:03:47). Smith said “cab” means “someone that is going to pick up and deliver something” and “sturdy” means “being trustworthy” (Tr. 71-72). Smith explained that “cereal” means to package contraband inside an “institutional cereal container” to transport an item between persons in custody (Tr. 72). Devonish then digresses from this conversation to tell the female that he “smells of much fire right now,” and shares some detail about a fire in his cell (Pet. Ex. 3A at 0:03:48-0:04:55). The female interrupts him to say, “He said he gave it to him already” (Id. at 0:04:57-0:04:59). Devonish repeats this information to others around him and they respond with joyful outbursts (Id. at 0:05:00-0:05:19). For several minutes thereafter, Devonish returns to talking with the female about other topics, such as the fire in his cell and writing a letter to his family if he died (Id. at 0:05:20-0:06:30). The female gets upset at Devonish for talking to someone she identifies as “KD” while he is on the phone with her (Id. at 0:08:26-0:08:35). Devonish then says something not quite discernable about “a shower,” and then says, “I had to go to the clinic. We both went to the clinic. He went first. Then I went after him” (Id. at 00:08:37-00:08:44). He continues for several minutes until the female interrupts him to relay a message: “He said the n**3 did some day room and got the envelope from under the door and some of the bones broke. Nine for KD, some for you, and a finger for KD. Let me know when you get it.” Devonish is heard repeating this message to others (Id. at 0:12:15-0:12:53). Smith testified that “bones” are “cigarettes,” a “finger” is a “measurement amount…used in the facilities…the finger of a plastic glove that they put whatever narcotic they’re going to use in” (Tr. 74, 78). Furthermore, he explained that the reference to “a finger” means that K2 was “placed in a glove finger,” which suggests that it was in “leafy form.” Smith also said K2 could be “sprayed on paper” (Tr. 105). Valentine’s name is not mentioned in the call. But, according to Smith, Devonish is passing messages to his girlfriend who is simultaneously messaging with Valentine’s girlfriend, who would then relay the messages to Valentine during their phone call (Tr. 73-74). Second Securus Recorded Phone Call (Pet. Ex. 3B) The audio for the second Securus recorded phone call is approximately 15 minutes and 18 seconds (Pet. Ex. 3B). While Smith identified the male caller as Valentine and the female as his girlfriend (Tr. 74-75), as I will discuss in more detail later, there is no reliable evidence corroborating his identification of these two individuals. The phone conversation begins with the male and female just talking about their day. The male briefly interrupts their conversation to shout a greeting to someone else, “Hey what’s up?” (Pet. Ex. 3B at 0:06:55-0:06:56). The conversation continues as follows: Female: They calling me, the Teasely people. But I don’t wanna answer because… Male: [talking with someone else] I got you. * * * Male: [talking to female] Hold on. I’m gonna call you. Hold on, hold on. Male: [talking with someone else] Yeah, I got you, I got you. Hold on. (Id. at 0:07:05-0:07:13, 07:29-0:07:46). Smith testified that Devonish is also known as “Teasley, Ty, Tease, Black Tie” (Tr. 23), and that the female’s reference to “Teasley people” is to “Devonish’s girlfriend” (Tr. 75). The female continues to talk, “I think that he’s trying to tell you something…Teasely people said that a cab is on the way” (Pet. Ex. 3B at 0:07:47-0:08:12). Smith explained this means “[t]hat a member of service is coming to pick something up” (Tr. 76). Then the female says to the caller, “Yo, Justin” (Pet. Ex. 3B at 0:08:50-0:08:53). Here, Smith highlighted the female addressing the caller as “Justin” to support his assertion that Valentine is the caller (Tr. 76-77). But Smith’s investigation, which will be discussed in detail later, showed that another person in custody named “Justin T.”4 was logged as the caller and not Valentine (Pet. Ex. 6). Thus, this portion of the audio does not establish the caller’s identity as Valentine. The conversation continues as follows: Female: Teasley people said he said that a cab is on the way. Put it in a cereal and give it to canine. Male: Nah, tell him I gave him that…. [indiscernable] Text him and be like, I just gave it to him. Female: Okay. Male: Hold on, don’t hang up. (Pet. Ex. 3B at 0:09:14-0:09:35). Here, Smith explained that the male, who he identified as Valentine, tells the female, who he identified as the girlfriend, to send a message that the contraband was already retrieved (Tr. 77). There is a break of several minutes, after which the conversation continues: Male: Have you texted that n**? Female: Saying what? Male: Bro, tell that n** bro…. Tell him I gave him this shit. But be like the envelope broke. Be like yo, the n** did some day room shit and grabbed it from under the door, the envelope broke. So some of the bones is broken…. Female: He said a n** did something wrong shit and grab the envelope from under the what? Male: Under the door. Be like some of the bones broke. Shit got me tight, bro. Female: Now gonna be your responsibility…basically his problem. Male: Be like is nine for KD, seven for you and a finger for KD. Female: Nine for KD, seven for you and a finger for KD. Male: N** said put everything in the cereal. Like I got cereal. (Pet. Ex. 3B at 0:12:35-0:14:13). Here, Smith stated that Valentine is describing to his girlfriend a mishap that occurred while the envelope was being pulled from under the door (Tr. 77), followed by the distribution of the items between Devonish and KD (Tr. 78). According to Smith, this call confirmed that the male caller supplied 16 cigarettes and a finger of K2 to Devonish and KD (Tr. 194, 196; Pet. Ex. 1). Before the call ends, the male states: Male: I try to do as quick as possible, throw everything in the envelope. Oh man, that shit got me tight bro. That shit ripped right under the door. I knew that was gonna happen bro because is like…just grab the fucking key bro. Shit got me tight. Be like let me know when you get that. Be like, let me know when you get that. I’m gonna call you back. (Pet. Ex. 3B at 0:14:19 to 0:14:50). Here, Smith explained that the caller’s reference to “got me tight” means “angry,” and the caller is stating that the person retrieving the contraband should have used keys to retrieve the envelope instead of pulling it from under the door (Tr. 78). Third Securus Recorded Phone Call (Pet. Ex. 3C) The audio for the third Securus recorded phone call is approximately 14 minutes and 24 seconds (Pet. Ex. 3C). Smith testified that this call is between Devonish and his girlfriend (Tr. 79). The audible and discernable parts of the conversation begin as follows: Female: He said did you get it. Devonish: Yeah I touchdown…. (Pet. Ex. 3C at 0:00:37-0:00:43). Smith testified that Devonish’s statement, “I touchdown,” was confirmation that he received the contraband (Tr. 79). The conversation continues: Devonish: Only gave me seven…. Gimme me a little late night. I went ballistic today. Today was pretty crazy. Female: If you could send straight. (Pet. Ex. 3C at 0:00:45-00:01:17). Here, it appears that the female is simultaneously relaying Devonish’s message to someone else. Devonish is heard giving additional instructions to the female, but that portion of the call is incomprehensible (Id. at 0:01:39-0:02:52). Devonish then digresses from this conversation to talk about his day and says, “I set my cell on fire” (Id. at 0:02:53-0:03:14). The female interrupts Devonish, and the following conversation ensues: Female: You said, yeah, you said 475, I got the rest for you in late night or bones whatever you want. Devonish: Oh tell him I take bones, bones… Female: He said he wants bones. Devonish: (indiscernible) Female: Send him another 25 dollars. I don’t know. Devonish: Yeah, yeah, I’m really sorry. I’m really sorry. Like I don’t be wanting problems. I don’t want you to think like,…I didn’t smoke no weed yet. (Id. at 00:03:15-00:04:04). Smith testified that “late night” is a reference to K2 (Tr. 79), but on cross examination, he admitted that “late night” could mean something else (Tr. 104). He also said this call is “Devonish’s girlfriend relaying a message from…Valentine asking if he wanted late night or bones” (Tr. 79), but Valentine’s name is never mentioned on this call. Devonish continues on to talk about what has happened to him the last two days, and he mentions that he is finally eating a decent meal, “chicken and rice…at 8 o’clock at night” (Pet. Ex. 3C at 0:04:08-0:04:50). Then he suddenly shouts, “Yo!” and calls out a name that sounds like either “Manning” or “Amaning,” and says, in part, “bro…I’m good bro! Good looking big bro. Appreciate you, son. You know that…enjoy your vacay, bro!” He calls out the name again and repeats, “Enjoy your vacay!” (Id. at 0:05:07-0:05:28). Smith testified that this portion of the audio is “Devonish thanking Captain Amaning and telling him to enjoy his vacation” (Tr. 80). It is undisputed that respondent started his vacation on September 3, 2023, two days after the date of this call (Pet. Ex. 8; Tr. 80-81, 298-99). Contrary to Smith’s finding, however, it is unclear from the audio whether Devonish is shouting respondent’s name or a similar sounding name. The Investigation RESH Timeline, Securus Call Detail Reports, and Closing Memorandum Smith created a document titled “RESH Timeline” to record important information in this case (Pet. Ex. 5; Tr. 108-09). In the timeline, Smith highlighted five Securus phone calls that he believed confirmed the contraband transport, occurring at 4:14 p.m. (1614 hours), 4:53 p.m. (1653 hours), 4:55 p.m. (1655 hours), 8:08 p.m. (2008 hours), and 8:10 p.m. (2010 hours) (Pet. Ex. 5). Next to the first two calls, at 4:14 p.m. and 4:53 p.m., Smith wrote a phone number ending in 3318, and noted that these were calls by Devonish confirming the plan for the contraband pickup by an “officer” (Id.). For the next two following calls, at 4:55 p.m. and 8:08 p.m., Smith wrote in the notes a phone number ending in 0732 and described them as calls made by Valentine (Id.). Specifically, he described the call at 4:55 p.m. as Valentine confirming the “pick up from cell #36,” and the call at 8:08 p.m. as Valentine confirming that Devonish received the contraband (Id.). Smith did not write a phone number next to the last call at 8:10 p.m., which he described as Devonish confirming receipt of the contraband (Id.). Using the phone numbers noted on the timeline, Smith generated two call detail reports which purportedly logged calls by Devonish on August 30 and 31, 2023, and by Valentine on August 31, 2023 (Pet. Exs. 6, 7). According to Smith, the phone number ending in 3318 belonged to Devonish’s girlfriend because Devonish called this number every day and she was identified as such in other calls that he had monitored (Pet. Ex. 7; Tr. 26, 87-89). I credited his testimony. As for the phone number ending in 0732, Smith testified that it belonged to Valentine’s “girlfriend,” because Valentine had called this phone number “from the beginning of his incarceration” (Tr. 48). I was not persuaded by Smith’s reason for concluding that this phone number belonged to Valentine’s girlfriend. Nevertheless, Smith claimed Valentine called this phone number to relay messages to Devonish (Tr. 48). Smith asserted that Devonish and Valentine could not communicate directly with each other because they were detained in different housing areas, so they relied on their girlfriends to act as intermediaries to relay messages about the contraband transaction (Tr. 48-49). Using a phone jack in the housing area wall or with a department-issued tablet, persons in custody could place calls with their unique booking case number. However, Smith testified that, based on his experience, persons in custody often used others’ booking case numbers to place calls. Smith postulated that persons in custody might use another booking case number because they did not have enough call minutes under their booking case number or to prevent tracing certain conversations back to them (Tr. 26-27, 57, 84). He testified that Devonish used various booking case numbers including his own to make calls. He also stated that it is “possible” other incarcerated persons used Devonish’s or Valentine’s booking case number to make calls (Tr. 57). Smith generated call detail reports using the Securus system. Because persons in custody shared booking case numbers, Smith explained that he did not generate the call detail reports by querying booking case numbers but queried instead the phone numbers of the “girlfriends” (Tr. 26-27, 48, 50). Using Devonish’s girlfriend’s phone number ending in 3318, Smith generated Devonish’s call detail report for August 30 and 31, 2023 (Pet. Ex. 7; Tr. 26-27, 85-86, 119). In the call detail reports, the booking case number appears in the “account” number column, and the owner of this number is identified as the caller by first and last name (Tr. 81-83). This report for Devonish shows six phone calls on August 30, 2023, with two calls by Devonish and four calls by a “Josiah H.” at Otis Bantum Correctional Center (“OBCC”) (Pet. Ex. 7 at 1-2). Smith testified that there might have been two more calls to that phone number on August 30th by Valentine, but he did not include them in this report (Tr. 92-94), and he did not explain why he excluded the calls with Valentine’s name. Furthermore, the report for Devonish showed that on August 31, 2023, the date of the alleged contraband transport, 16 calls were made to this number, none of which identified the caller as Devonish (Pet. Ex. 7). Instead, one call identified the caller as “Xavier M.” from RESH, and the remaining 15 calls identified the caller as “Josiah H.” at OBCC (Id. at 2-5). Although this report did not log Devonish’s name on any of the calls to this phone number on August 31st, I credited Smith’s ability to recognize Devonish’s voice on the calls. Smith recorded in the RESH Timeline two calls by Devonish, at 4:14 p.m. and 4:53 p.m. (Pet. Ex. 5). Smith testified that the audio of the first Securus recorded phone call between Devonish and his girlfriend was at one of these two times (Tr. 70-71; Pet. Ex. 7 at 4). The time of the first call is important because that affects petitioner’s proof regarding the time of the third Securus recorded phone call between Devonish and his girlfriend. I found that the evidence established the first Securus recorded phone call as occurring at 4:53:19 p.m. First, the duration of the call at 4:14:42 p.m. was less than two minutes, but the first Securus call audio recording was over 14 minutes, which is approximately the duration of the call at 4:53:19 p.m. (Pet. Exs. 3A, 7 at 4). Second, Smith recorded in his RESH Timeline that on the 4:14 p.m. call, Devonish states, “text Jus and tell him K9 is about to pull up” (Pet. Ex. 5), but Devonish does not make this statement in the first Securus audio. Petitioner did not seek to introduce the audio of the call with this statement into evidence.5 Third, Smith testified that Devonish was in the shower when he made the call (Tr. 28), and, in the surveillance video, which I describe in detail later, Devonish is removed from his cell at approximately 4:16 p.m. and later escorted to the shower area, at approximately 4:42 p.m. (Pet. Ex. 2 at Angle 87.216 at 4:16:37-4:19:05; Angle 87.238 at 4:41:50-4:41:56). Therefore, the evidence established that the audio of the first Securus recorded call by Devonish was likely at 4:53:19 p.m. Smith testified that the second Securus recorded audio was a phone call between Valentine, who allegedly supplied the contraband, and his “girlfriend” (Tr. 74-75). Smith generated a call detail report purportedly for Valentine using the phone number ending in 0732, the number Valentine called since the start of his incarceration (Pet. Ex. 6; Tr. 48, 81, 84-85). In the RESH Timeline, Smith recorded that at 4:55 p.m. (1655 hours), Valentine called this number to confirm the contraband pickup (Pet. Ex. 5). The call detail report Smith generated for this call shows nine calls made to this number on August 31, 2023: seven calls identify the caller as “Justin Valentine” from RESH and two calls identify the caller as “Justin T.” from RESH (Pet. Ex. 6). This report does not show a call made at 4:55 p.m., so it is not clear if this report corresponds to the call documented on the RESH Timeline (Id.). But the report logs a 15-minute call from 4:48:07 p.m. (16:48:07) to 5:03:07 p.m. (17:03:07), that identifies the caller as “Justin T.,” not Valentine (Id.). As discussed earlier, I did not credit Smith’s testimony that he could identify Valentine by the sound of his voice. Although Smith testified that persons in custody used the booking case numbers of other persons in custody to make calls, the evidence did not prove that Valentine had used Justin T.’s booking case number to make this call. Smith testified that Valentine was implicated in this case because he heard Devonish say the name “Jus” in a call, which led him to search the first name “Justin” in the list of incarcerated persons. Smith did not recall the results of his search but based on this search, he concluded Justin Valentine was involved with Devonish in the contraband transaction (Tr. 116-17). It is unclear why Smith concluded that Devonish was referring to Valentine and not to someone else named “Justin,” but it is clear from the call detail report that there was at least one other person named Justin detained at RESH (Pet. Ex. 6 at 2). Smith also testified that he implicated Valentine based on the surveillance video in which he observed respondent at Valentine’s cell door “pulling an envelope [from] under the door and the bones breaking” (Tr. 45). While the surveillance video shows respondent pulling an envelope containing two items from under Valentine’s cell door, it did not show respondent retrieving 16 cigarettes and a finger of K2, the contraband that Smith found had been delivered to Devonish (Pet. Ex. 1). Furthermore, the male caller and contraband supplier never mentions a manila envelope in the second Securus call audio recording in which he confirms the pickup. Thus, the investigative finding that Valentine was the caller who supplied the contraband was based on inferences that are not supported by the evidence and I do not find that petitioner established the identity of the contraband supplier as Valentine. Smith testified that the third Securus audio recording between Devonish and his girlfriend in which Devonish confirms receipt of the contraband was made “minutes” after the second call, which was made minutes after the first call (Tr. 74-75, 79). But Smith’s testimony regarding the timing of this call is not corroborated by the call detail report for Devonish nor by his investigatory documents. As discussed previously, the evidence established that the first Securus recorded phone call likely occurred at 4:53:19 p.m. (Pet. Ex. 7 at 4). The next call documented in the call detail report for Devonish is not until 6:31:36 p.m., which is more than an hour after the 4:53:19 p.m. call (Id. at 5). If the third Securus call was made by Devonish “minutes” after the second Securus call, then it is not reflected in the call detail report generated for Devonish’s calls. Furthermore, Smith’s investigatory documents note this call at “2010 hours” (8:10 p.m.) (Pet. Exs. 1, 5). During cross examination, Smith contradicted his initial testimony and agreed with defense counsel that this call was made at 8:10 p.m. (Tr. 236, 239-40). Therefore, I did not credit Smith’s testimony that this third Securus recorded call occurred close in time to the first and second Securus recorded calls that are in evidence, but instead find that it occurred around 8:10 p.m. The timing of this third Securus recorded phone call is important because Smith testified that the video showed respondent “walking away from where Devonish was secured at the time” as Devonish was thanking respondent and telling him to enjoy his vacation (Tr. 79-80). Smith did not preserve any video evidence beyond 5:15 p.m. (Tr. 110-13), so there is no video evidence to corroborate this testimony. In short, petitioner failed to establish with reliable evidence that respondent was near Devonish around the time of this call, at approximately 8:10 p.m. In the RESH Timeline, Smith noted that at 4:54 p.m. (1654 hours), respondent “retriev[ed] a white envelope from the bottom of cell #36. While retrieving the envelope, two cigarettes momentarily became visible,” and at 4:58 p.m. (1658 hours), “2 cigarettes can be seen at the top of the envelope” (Pet. Ex. 5). Smith testified that he attempted to document all the important information in this case in the RESH Timeline, but he omitted some material facts. For example, he failed to include that respondent was accompanied by another correction officer from the time Devonish was removed from his cell at approximately 4:18 p.m. until he was escorted to the shower area at approximately 4:41 p.m. (Id.). Other correction officers were present in the shower area where Devonish was detained, but the timeline did not include this detail either (Id.). Smith admitted that these omissions were an “oversight” (Tr. 175). He also did not write that a person in custody called out respondent’s name during a phone call. In the investigation Closing Memorandum, Smith wrote that his review of a series of phone calls between Devonish and Valentine uncovered a delivery arrangement of “contraband containing 16 cigarettes (Bones) and late night (K2)” by a “Member of Service” (Pet. Ex. 1). Much of the information in this memorandum is consistent with the timeline, except notably the following: Smith omitted any reference to the manila envelope respondent is seen retrieving in the surveillance video; he wrote that Devonish instructed his girlfriend to relay a message to Valentine via Instagram; and, at 4:55 p.m., Valentine “sent a message via three-way call [] confirming pickup of contraband” (Id.). Petitioner did not seek to introduce evidence of any Instagram messages. The 4:55 p.m. call by Valentine described as a “three-way” call in the memorandum is not what is heard in the second Securus recorded audio. After the investigation, Smith concluded that respondent had “transported contraband from one housing area to another” and recommended bringing charges against respondent (Pet. Ex. 1 at 2; Tr. 109). Respondent was suspended from duty on September 27, 2023, and placed on modified duty on September 28, 2023 (Pet. Ex. 1 at 2; Tr. 109). Genetec Video Footage Genetec surveillance camera system records movements in the facilities (Tr. 28, 184). Smith testified that the phone calls “coincided with the Genetec footage” in this case, but then stated generally that the times of the Securus recordings and Genetec videos are not “100 percent in sync with each other” and “they could be minutes off” (Tr. 180). The video begins with respondent removing Devonish from his cell at the 11 Building Housing Area. H11-Upper-Front-RT1 (Pet. Ex. 2 at Angle 87.216) Respondent stands at the center of the corridor and speaks to the person in custody through the cell door.6 An unidentified correction officer (CO1) appears holding a fire extinguisher, then opens the cuffing port and handcuffs the person in custody through it before unlocking the cell door. Devonish steps out coughing and black smoke emanates from the cell (4:16:37-4:19:05; Tr. 32, 159-60). CO1 escorts Devonish in handcuffs down the corridor and appears to say something to Devonish while both men are smiling. A faint blue light illuminates around Devonish’s waist, underneath his white T-shirt (4:19:05-4:19:12). Smith testified that the light is from a tablet used for making calls (Tr. 33). Respondent remains by the cell door with a fire extinguisher, sprays inside the cell, then closes the cell door and walks in the same direction as CO1 and Devonish (4:19:05-4:19:30). H11 Lower Front-LT1 (Pet. Ex. 2 at Angle 87.238) Devonish, CO1, and respondent exit the 11 Building Housing Area (4:19:55-4:20:04). East Corridor 4 (Pet. Ex. 2 at Angle 14.40) Devonish, CO1, and respondent walk to the end of this corridor. They turn left, apparently to visit the clinic (4:21:07-4:21:45; Tr. 35). H11 Lower Front-LT1 (Pet. Ex. 2 at Angle 87.238) In this camera angle, a “white box” used for redaction obstructs the view to the right at the entrance of the shower area. There is no surveillance camera inside the shower area. It appears that one or more officers are inside the housing area control station, also known as “the bubble,” located to the left and opposite the shower area (4:19:55-5:09:31). The video for this area begins at 4:15:23 p.m. Several times, a correction officer brings what appear to be papers or tissues to someone in the shower area (4:28:25-4:28:35, 4:28:54-4:28:58, 4:31:33-4:31:36, 4:32:23-4:32:29). A second officer appears and stands by the shower area entrance to talk with someone in the shower (4:36:45-4:37:10). At approximately 4:42 p.m., respondent and CO1 escort Devonish back to the 11 Building Housing Area. Devonish is wearing a face mask and a dark shirt unbuttoned over his white T-shirt. No illuminating blue light is visible on Devonish. They enter the shower area (4:41:50-4:41:56). Respondent remains in the shower area and is out of camera view for over two minutes (4:41:56-4:44:12). An officer wearing a fire safety unit uniform briefly enters the area and talks with CO1 and others in the shower area (4:42:34-4:42:43). When respondent reappears in view of the camera, he moves about the area talking at times with whoever is in the shower or with someone in the bubble. CO1 also goes in and out of the shower area several times in the next ten minutes and is seen talking to the people in the shower area (4:42:25-4:52:50). Another correction officer who is wearing or holding gloves enters the area a couple of times and talks to the people in the shower area as well (4:48:09, 4:52:02-4:53:42). At 4:50 p.m., respondent exits the 11 Building Housing Area (4:50:00). 15U-Rear-LF2 (Pet. Ex. 2 at Angle 84.105), 15U-Rear-RT3 (Pet. Ex. 2 at Angle 84.106) At approximately 4:54 p.m., four minutes after leaving the shower area, respondent arrives in the 15 Building Housing Area and a correction officer unlocks the gate to let him in (84.105 at 4:53:52-4:54:01). Respondent is holding two letter-size white papers. He walks down a corridor and stops in front of cell 36. There is no dispute that Valentine is detained in cell 36 (Tr. 267, 288). Respondent looks through the rectangular window on the cell door, apparently speaking while attempting to show documents to Valentine through the window (84.106 at 4:54:26-4:55:20). He moves away from cell 36 and walks down the right corridor of the housing area (84.105 at 4:56:40-4:57:49; 84.106 at 4:56:33-4:57:50). Respondent returns to cell 36 and appears to speak through the cell door window again. He then bends down to pull something from underneath the cell door (84.106 at 4:57:56-4:58:06). The opening under the cell door is narrow and he struggles to pull this item out using just one hand. He then puts down the documents he is holding and pulls the item using both hands. The item he pulls out from under the door appears to be a white square envelope approximately half of a letter-sized paper in size. The envelope does not appear to have ripped as it was being pulled. There are two white skinny stick-like objects jutting out from the top of the envelope. He picks up the documents he was holding, places the envelope underneath the documents, and stands up (84.106 at 4:58:15-4:58:32). Afterwards, respondent looks through the window of cell door 36 again and appears to be talking. Then he turns around to face the center of the housing area (84.106 at 4:58:42-4:58:57). He lingers in front of cell 36 until a correction officer, identified as Wright (Tr. 204-05), appears with a key to unlock the cuffing port to the cell. Respondent removes a letter-size yellow manila envelope from the cuffing port (84.106 at 4:59:45-4:59:57). He walks down to the end of the right corridor and turns right to exit the housing area (84.105 at 5:00:09-5:00:32). 15U-Front-LF2 (Pet. Ex. 2 at Angle 84.97), 15B-ESH-Stairs (Pet. Ex. 2 at Angle 14.93) Respondent walks through the stairway (84.97 at 5:00:28-5:00:30). He is holding the white envelope he pulled from under the door of cell 36, the two papers he had brought with him, and the manila envelope that he retrieved from the cuffing port (14.93 at 5:00:33). As he walks down the stairway, he opens the manila envelope and pulls out a paper with a picture of a car (14.93 at 5:00:34-5:00:37). He puts the paper back inside the manila envelope, which is neither bulky nor flat (14.93 at 5:00:41-5:01:00). At the bottom of the staircase, he fidgets with the items he is holding in his hands, but it is not clearly visible what he is doing. The gate to exit the staircase is locked, and Wright appears with the key to let respondent out (14.93 at 5:01:56-5:02:15). H11 Lower Front-LT1 (Pet. Ex. 2 at Angle 87.238) Approximately three minutes after respondent exits the 15 Building Housing Area, at approximately 5:05 p.m., respondent opens the door and enters the hallway to the shower area of 11 Building Housing Area holding a manila envelope and white papers. It is not clear if the white papers are the documents he was holding when he visited the 15 Building Housing Area or the envelope, or both, or something else. He walks directly to the shower area and disappears from camera view (5:05:45-5:07:01). Meanwhile, a correction officer walks past the shower area (5:06:49-5:06:54). One minute and 25 seconds after entering the shower area, respondent steps into the hallway and into camera view still holding the white papers and manila envelope containing what appear to be papers or a half-inch thick booklet7 inside (5:07:02-5:07:15). Respondent walks toward the bubble but returns to the shower area to talk to someone. He stands at the entrance to the shower area talking and smiling, then walks to the bubble and stands there briefly before walking down the hallway and out of the camera view (5:07:21-5:08:26). Approximately 30 seconds later, respondent returns to the hallway into camera view again still holding the manila envelope with the other papers and walks around the hallway before going to the bubble to retrieve a piece of paper. He exits the camera frame before the video ends (5:08:27-5:09:49). H11 Lower Front-LT2 (Pet. Ex. 2 at Angle 87.241) At 5:14:19 p.m., respondent is still holding the manila envelope and papers in his hand as he walks about. He disappears from camera view momentarily as he walks toward the bubble, and reappears at 5:14:31 p.m., holding several small white boxes but not the manila envelope. The video does not clearly show if he still has the white envelope or papers with him. Smith did not preserve video footage past 5:15 p.m. (Pet. Ex. 2). Respondent’s Evidence Respondent emigrated from Ghana, West Africa, approximately 28 years ago and lives in Brooklyn, New York, with his two children (Tr. 257-58). He attended college and obtained a degree in accounting. He worked in the private sector before joining the City’s Parks Department, where he worked as an Urban Park Ranger for eight years and as a supervisor for four to five years. He testified to receiving excellent evaluations as the City’s park ranger and an award for honorable service (Tr. 258-59). In 2013, he joined the Department as a correction officer. After passing an examination, he became a captain in 2016, a position he has held for approximately eight years (Tr. 258-59, 285). As captain, he returned to the facility where he started as a correction officer and worked hard to gain the trust and respect of his peers as their captain. He testified that he is regarded highly by both supervisors and subordinates (Tr. 259). In 2018, he received an award and recommendation from “Warden Dunbar” for defusing a difficult situation to prevent violence at the facility (Tr. 260). He testified to having excellent attendance, even during the COVID pandemic, reporting to work every day and responding to coverage needs when other officers are absent. One time, he was averaging over 120 hours of overtime a month and, as a result, dozed off at work, for which he accepted responsibility and was disciplined (Tr. 260). Respondent testified that he treats persons in custody with patience and dignity as fellow human beings. He denied performing any favors for the incarcerated (Tr. 261). On August 31, 2023, he was assigned to work the afternoon tour at RESH (Tr. 261-62). He recalled that the facility was short-staffed, and most housing areas were temporarily closed (Tr. 262). He received a call from the deputy warden to help secure a housing area because a person in custody, “Detainee E.,” attempted suicide (Tr. 262).8 Respondent testified that he escorted Detainee E. to the clinic for a mental health evaluation and talked with him for 20 to 30 minutes. Detainee E. asked for help with obtaining his “discovery” that he had been trying to get through the law library (Tr. 262-63, 288). Respondent explained that “discovery” is “material in connection to [the incarcerated person's] case” (Tr. 287), and the facility provides incarcerated persons with their discovery upon request (Tr. 288). He testified that “the law library person is the only person that’s able to go from housing area to housing area to retrieve materials…documentation and stuff” (Tr. 263). But due to short staffing, the law library was closed that day (Tr. 263, 297). Detainee E. said person in custody Valentine, who was housed in a different area, was reviewing his discovery (Tr. 263-64). Respondent testified that it is common for incarcerated persons to review each other’s “discovery” and share suggestions (Tr. 267, 288). Respondent said Detainee E. wanted to take a shower. No one was in the shower area because of a housing area “lockdown,” and respondent did not see a problem with allowing Detainee E. to take a shower to calm him down before returning him to the cell. Respondent escorted Detainee E. from the clinic to the shower area. According to respondent, all this happened before 4:00 p.m. (Tr. 264). Simultaneously, respondent said an officer told him that Devonish had set a fire in his cell. He extinguished the fire in Devonish’s cell and, together with another officer, escorted Devonish to the clinic then to the shower area in accordance with protocol (Tr. 265-66). Detainee E. was in the shower area when he escorted Devonish there (Tr. 266). He did not see anyone on the phone in the shower area (Tr. 266). Afterwards, he went to pick up Detainee E.’s discovery from Valentine’s cell (Tr. 266-67). According to respondent, the Department’s rules did not prohibit him from getting discovery materials for a person in custody, and it was not considered undue familiarity to give a person in custody their discovery (Tr. 266-67, 288). Respondent arrived at Valentine’s cell and spoke to him through the closed cell door. There is no evidence that Valentine shared his cell with other detainees. He said that he was there to pick up Detainee E.’s discovery (Tr. 267, 288). From under the cell door, Valentine pushed what respondent described as “folded paper” (Tr. 267-68, 289). Respondent thought it was odd, but he pulled the paper from underneath the door. He was surprised to see that it was not discovery but instead two wicks sticking out from the paper (Tr. 269, 288-89). He explained that persons in custody make wicks from mop strings provided by the Department to create fires (Tr. 269, 289-91). He told Valentine, “I came here for discovery. I didn’t come here for any other stuff” (Tr. 268). He called to an officer to open the cuffing port from which he retrieved a manila envelope that contained what he believed was the discovery (Tr. 268, 293). He looked inside the manila envelope to ensure that there was no contraband inside and it was safe to transport (Tr. 270-71). Upon viewing the papers inside the manila envelope, he determined that it was safe to transport. He denied that the manila envelope contained cigarettes and K2 (Tr. 271, 294). Respondent returned to 11 Building Housing shower area where he left Detainee E. and attempted to give him the manila envelope with the discovery. But Detainee E. told him that this was not what he had wanted (Tr. 269-70). Respondent said he told Detainee E. that he “wasn’t going to get anything else beside that” (Tr. 269). Detainee E. asked him to leave the discovery with the officer in the bubble for retrieval later (Tr. 269-70, 295). Respondent said he gave the manila envelope to an officer who placed it in the bubble, and he did not see the manila envelope again (Tr. 270, 274). As for the wicks, respondent said he disposed of them (Tr. 269, 290). On cross-examination, he said he did not inform a supervisor or submit a statement about retrieving the wicks, but later said he probably did tell a supervisor but could not recall (Tr. 292-93). Respondent testified that he did not see or possess any cigarettes or narcotics, including K2, on that day, and he did not give anything in any envelope to a person in custody (Tr. 272). He further testified that on August 31, 2023, he probably left the housing area by lockdown at 8:00 p.m. and was not near Devonish around that time (Tr. 274-75). Respondent went on vacation in early September (Tr. 298-99). The Charge Petitioner charged respondent with engaging in conduct unbecoming an officer and of a nature to bring discredit upon the Department, failing to cooperate in maintaining the security and good order of the facility, and engaging in undue familiarity involving the transport of contraband in the form of cigarettes and K2 for persons in custody (ALJ Exs. 1; 2; 3 at 3.05.120, 3.25.010, 3.25.040, 4.40.040). Undue familiarity “occurs whenever an act constitutes a personal favor that breaches the proper wall of separation between the jailers and the jailed.” Dep’t of Correction v. Paul, OATH Index No. 1712/21 at 22 (Feb. 7, 2022), adopted, Comm’r Dec. (Apr. 20, 2022), aff’d sub nom. Matter of Paul v. City of New York, 220 A.D.3d 423 (1st Dep’t 2023) (citation omitted). Petitioner argued that respondent’s participation in the contraband transport was “plainly spelled out on the Genetec” (Tr. 329). But I did not find that the video shows respondent transporting 16 cigarettes and a finger of K2, the contraband described by the male caller on the second Securus recorded phone call who supplied the alleged contraband and what Smith had concluded were delivered to Devonish (Pet. Exs. 1, 3B at 0:12:33-0:14:16; Tr. 196). In the video, we see respondent retrieve from the narrow-slit underneath Valentine’s cell door a relatively flat, white, square envelope about the size of a folded letter-size paper from which two white stick-like items are peeking out. Petitioner concluded that these were cigarettes, whereas respondent claimed they were wicks incarcerated persons made from institutional mop strings. It is difficult to identify what these items are from the video. However, the video does not show 16 cigarettes and anything resembling “a finger” of narcotics. Thus, I found that the video does not show with sufficient reliability respondent retrieving from under the door of Valentine’s cell the contraband described by the supplier in the second Securus phone call audio. As for the manila envelope retrieved from the cuffing port, the male caller on the second Securus recorded phone call never mentions a manila envelope or its retrieval from the cuffing port. Smith also did not mention the manila envelope in his Closing Memorandum, indicating that he did not find this item to be relevant or important to the case. During cross-examination, however, Smith testified “there’s another envelope [respondent] receives after,” to suggest that the contraband could have been inside the manila envelope (Tr. 196). The video shows the manila envelope containing papers and possibly a booklet that is about ½ inch thick, which seems to comport with respondent’s testimony that he retrieved “discovery” materials for legal proceedings from Valentine’s cell and not contraband. See Dep’t of Correction Directive No. 4508R-E, (eff. Aug. 15, 2013) (noting persons in custody are permitted to possess “[l]egal material, law books, publications, etc. (no limit)”). The video does not show the complete contents inside the manila envelope, but it also does not show respondent handing the manila envelope to Devonish or to any incarcerated person. Respondent testified without dispute that he last saw the manila envelope when he gave it to an officer to keep in the bubble (Tr. 269, 270, 274), and I credit his testimony. If the manila envelope contained contraband, it seems unlikely that respondent would leave the illicit material he had retrieved from a person in custody for safekeeping in the facility office. Contrary to petitioner’s contention, the video failed to prove the charge. There were gaps and inconsistencies in petitioner’s proof, and petitioner failed to present reliable evidence to resolve them. For example, petitioner did not offer testimony of any witnesses who were with respondent and Devonish during the relevant period. The video showed that CO1 assisted respondent from the beginning with removing Devonish from the cell to escorting him to the clinic and then to the shower area, but Smith did not interview CO1. Nor did Smith interview the other correction officers on the video seen in the vicinity of the shower area with respondent and Devonish. Smith did not interview Devonish, who remained incarcerated at Rikers Island (Tr. 330), or Valentine because he believed “[i]t wasn’t necessary” (Tr. 58). He did not interview any of the other incarcerated persons named in the call detail reports. Furthermore, Smith did not interview respondent or have him submit a formal statement regarding his activities on August 31, 2023 (Tr. 230-31, 234). Despite the gaps and inconsistencies in the information pertaining to the Securus audio recordings and the call detail reports, and the video which did not show the retrieval of the alleged contraband, Smith conducted no interviews of these potentially material witnesses during his investigation (Tr. 118, 228-31). Cf. Dep’t of Correction v. Reid, OATH Index No. 0076/23 (Apr. 13, 2023) (finding petitioner failed to meet its burden of proof on a false medical documentation charge where investigator failed to interview staff members at the doctor’s office who might have provided the alleged false note, and respondent presented a plausible explanation for seeming irregularities in the notes he submitted). There are some issues raised by respondent’s testimony. Respondent testified that Valentine slipped a folded paper containing two wicks made from mop strings under his cell door to respondent. These were impermissible items that respondent admitted to discarding without submitting a written statement, and he could not recall if he alerted a supervisor. But respondent was not charged with misconduct pertaining to the wicks. Petitioner specifically alleged that the items respondent retrieved were cigarettes and K2, and petitioner’s proof falls short. Petitioner bears the burden to establish its case. See Fire Dep’t v. Loscuito, OATH Index No. 509/06 at 20-21 (June 14, 2006), adopted, Comm’r Dec. (June 28, 2006), aff’d, 50 A.D.3d 905 (2d Dep’t 2008) (“This tribunal has long held that where an agency fails to establish essential elements of its case, it may not rely upon inconsistencies in a respondent’s testimony, or even a lack of credibility, to substitute for proof.” (citation omitted)). Here, petitioner relied on Smith’s investigation, which was not persuasive. This tribunal has found undue familiarity where sufficient evidence established the charge. See, e.g., Dep’t of Correction v. Zapata, OATH Index No. 1234/24 at 2, 4, 9 (Mar. 19, 2024) (finding correction officer’s admission to giving gifts and video evidence of officer handing three opaquely wrapped items to detainee amply sustained a charge of undue familiarity); Dep’t of Correction v. Parson, OATH Index No. 315/24 at 22-24 (Dec. 29, 2023), adopted, Comm’r Dec. (Feb. 5, 2024), modified, NYC Civ. Serv. Comm’n Case No. 2024-0133 (Aug. 6, 2024) (finding undue familiarity where video evidence showed correction officer repeatedly permitting a person in custody to violate Department rules to maintain “the physical boundaries” between officers and detainee, and officer “had lost control,” resulting in the detainee obtaining contraband from another incarcerated person); Dep’t of Correction v. Kitt, OATH Index No. 1829/23 at 2, 9 (Aug. 7, 2023), adopted, Comm’r Dec. (Sept. 25, 2023), aff’d, NYC Civ. Serv. Comm’n Case No. 2023-0522 (Feb. 1, 2024) (finding undue familiarity where video showed correction officer passing notes between two incarcerated persons and the officer admitted to it); Paul, OATH 1712/21 at 2-3, 22-23 (finding that even though there was no evidence of a particular relationship, captain’s action in delivering shorts in a brown bag to a detainee after midnight in violation of well-established facility procedure constituted undue familiarity, and captain offered no reasonable or plausible explanation for his action); Dep’t of Correction v. Pearson, OATH Index No. 391/14 (Dec. 18, 2013), adopted, Comm’r Dec. (Feb. 26, 2014), aff’d, NYC Civ. Serv. Comm’n Case No. 2014-0252 (July 10, 2014) (finding undue familiarity where officer had a pre-existing and ongoing relationship with a person in custody, speaking with him by phone over 100 times); Dep’t of Correction v. LeConte, OATH Index No. 788/96 at 9-10 (Jan. 8, 1996) (finding undue familiarity by officer who gave detainee leftover chicken that would have been thrown in the garbage as it constitutes a personal favor that breaches the proper wall of separation between the jailers and the jailed); see also Dep’t of Correction v. Santiago, OATH Index No. 2704/14 at 7 (Sept. 19, 2014) (finding that talking with incarcerated person for 45 minutes was not undue familiarity). In contrast to the cases in which evidence established undue familiarity, the evidence in this case is insufficient to sustain the charges. Petitioner failed to put forth reliable evidence to link the evidence of contraband transport with the video of respondent’s activity on August 31, 2023, to prove his involvement in the contraband transport. See Triborough Bridge & Tunnel Auth. v. Houston, OATH Index No. 104/21 at 15 (Jan. 5, 2023), adopted, Pres. Dec. (Feb. 28, 2023) (dismissing charge alleging misconduct because investigation was unreliable and investigator’s testimony incredible); see, e.g., Dep’t of Correction v. Rodriguez, OATH Index No. 459/16 (June 15, 2016) (dismissing charge because petitioner failed to prove the charge by a preponderance of the credible evidence); Dep’t of Correction v. Singletary, OATH Index No. 500/13 (June 28, 2013) (dismissing charge for petitioner’s failure to establish proof of misconduct). In sum, petitioner failed to prove by a preponderance of the credible evidence that respondent engaged in undue familiarity and transported contraband for persons in custody in violation of Department’s rules. FINDINGS AND CONCLUSIONS Petitioner failed to prove that respondent engaged in undue familiarity by retrieving an envelope containing contraband, specifically, 16 cigarettes and a finger of K2, from person in custody Valentine’s cell and delivering it to person in custody Devonish. RECOMMENDATION I recommend that the charges be dismissed. Dated: October 11, 2024
