New York State Court of Claims

New York State Court of Claims

HOLMES v. THE STATE OF NEW YORK, #2000-004-012, Claim No. 100983


Synopsis


Negligent termination of parole.

Case Information

UID:
2000-004-012
Claimant(s):
DARROW J. HOLMES
Claimant short name:
HOLMES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the title to eliminate surplusage, designate the Claimant and Defendant as such, and eliminate a named defendant over which the Court has no jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100983
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
DARROW J. HOLMES, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Earl F. GialanellaAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 13, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
The filed Claim[1]
herein is three and a half pages long. The essence of the Claim follows:
(1) Claimant Darrow J. Holmes charges the State Division of Parole in there official capacity grossly negligent, harassment, prejudice, unlawfull imprisonment, unlawful discrimintory practice on the basis of Claimant's sexual orientation.

***

(5) Defendants intentionaly and willingfully at all time acted unprofessionally humilating plaintiff on Feb.26, 1999 time approx. 10:00 a.m. while being interviewed at the Broome County Social Services Dept. on Main St. in the city of Binghamton, New York. The defendants apprehended plaintiff and placed plaintiff under arrest without any reasonable cause nor was any explaination of the returning by a warrant given other than plaintiff being gay and appeared to be feminine. Plaintiff was placed in restraints and forcibly removed out of a Social Services interviewing room while citizen's stared in disbelief and appalled behind the abrupt apprehension.

(6) Plaintiff further charges the Defendants with grossly negligence in the operation of duties, hiring, supervision and training poorly managment, failing to adhere to policy and procedure govern the protcole of investigations. When defendents allege or has reasonable belief that a parolee has violated His/Her parole are required to perform an investigation. Defendants knew or should have known plaintiff had not violated his parole in any important respect when they personally observe plaintiff not in violation of rule 13 (F) in the fashion or likelyness of female in the Dept. of Social Services interview room with no female attire or cosmetic appearance or wig displayed. It was prima-facie evidence to defendants on sight but none the less defendants acted bias, harassed plaintiff and exhibited a extreme abusive discretion in violating plaintiff's civil rights in all respects and placing plaintiff at extreme disadvantage to oppose. Such inhumane treatment on the basis plaintiff's sexual orientation as a overt transexual having Breast's and attributes of female gender.

***

(10) Plaintiff charges Defendants with violating Plaintiff's New York State constitution of discrimination on the bases of plaintiff's sexual orientation as Transexualism, threatening plaintiff, and placing unduly hardship and duress to plaintiff from portrary feminine characteristic attributes in the likeiness of a female despite the fact defendants knew plaintiff was going through hormone treatment prior to imposing such condition upon plaintiff, and plaintiff has been undergoing female prescribed Estrogen for over 10 years, and cross dressing for over 15 years.

***

Wherefore....The Defendants ...violated...Plaintiff's right to be free, and the right to pursue his sexual orientation....

This Claim presents a factual issue in this day and age not easily resolved. That is, where does one draw the line between feminine attire, beauty aids and related accouterments and masculine attire, beauty aids and accouterments.


According to Claimant, he has "been gay for over 20 years" or "since I was 16 years old" and also "a transsexual".[2]


He is also a convicted felon.


Claimant's Exhibit 8 is a State Division of Parole form entitled "CERTIFICATE OF RELEASE TO PAROLE SUPERVISION" dated December 1, 1998. It recites that Claimant was to be paroled from the Elmira Correctional Facility on February 17, 1999, which happened. The form, signed by the Claimant, on February 16, 1999, states, "I understand that Parole supervision is defined by these Conditions of Release....I understand that my violation of these conditions may result in the revocation of my release". There follows a series of 11 pre-printed conditions of release. In addition, we find the following "Special Conditions" typed on the form, "I will not present myself in the fashion, likeness and/or attire of a woman nor by any other means lead other to believe that I am female. I shall not own or possess female attire or cosmetics, including wigs". (Cl. Ex. 8)


State's Exhibit B, dated February 26, 1999, is a four page document entitled "STATE OF NEW YORK - EXECUTIVE DEPARTMENT - DIVISION OF PAROLE VIOLATION OF RELEASE REPORT". Attached thereto is Claimant's "CRIMINAL RECORD", which recites a long litany of convictions for a variety of crimes, ranging from assault, through resisting arrest and prostitution, to robbery. In the Violation of Release Report, we find, "The subject was violated on June 12, 1997 for possessing cocaine. He was returned and held at State prison". (St. Ex. B, p 1) And "Holmes has had four prior Parole releases, all resulting in violations shortly after release". (
ibid.) Most pertinent, we find under "DESCRIPTION OF CURRENT VIOLATIVE BEHAVIOR" the following,
On February 25, 1999 we received a report from a caseworker at the Department of Social Services, County of Broome, complaining that the subject was in the Welfare Office in full female garb. The caseworker was advised to notify us at such time the subject again appears in such garb.

On February 26, 1999 we again received a phone call from the same caseworker complaining that the subject was in the office wearing female cosmetics and made up to look like a woman.

Based upon this, Area Supervisor Simon issued a warrant and directed that the subject be taken into custody.

(ibid.)
Claimant's Exhibit 1 is a "WARRANT FOR RETAKING AND DETAINING A PAROLED OR CONDITIONALLY RELEASED INMATE", issued by Alan J. Simon, the area supervisor for the Department of Parole. It is dated February 26, 1999, the date of Claimant's second visit to the offices of the Broome County Social Services Department. It does not set forth the date(s) of the alleged parole violation(s).


Claimant's Exhibit 7 for identification is a copy of the transcript of a "Final Parole Revocation Hearing" held on September 8, 1999, well after the events that give rise to this claim occurred. Only pages 23 and 24 of Claimant's Exhibit 7 for identification were offered in evidence by the Claimant. State's counsel had no objection and thus those two pages were received in evidence as Claimant's Exhibit 7. Although after the fact, those two pages are best considered chronologically at this point. The following are what the Court finds to be pertinent excerpts from the testimony of Tewksbury, apparently a Parole Officer involved in a parole revocation:
Q. Officer, did you consent to allow Mr. Holmes to wear women's clothing?

A. No. I did consent to allow him to wear a bra. He presented me with a prescription that he had for estrogen. He appeared to have breast development and therefore I allowed him to wear a bra, but I emphasized that he was to wear no other women's attire. And that he was to keep it under wraps.[3]

***

Q. Do you recognize that photocopied document, parole officer?

A. Yes.

Q. Do you recognize what that document is?

A. This is a Certificate of Release to Parole Supervision and it has the board imposed special conditions.

Q. And were those board special conditions under number 12 modified in any way during any of the time that you were supervising Mr. Holmes?

A. I would have to say only to the effect, and maybe this will correct my earlier testimony, but I did verbally modify 12-7 to allow Mr. Holmes to wear a bra. That was the only change.

(Footnote added)
Shortly after having been released on parole from the Elmira Correctional Facility, and on February 25, 1999, Claimant went to the offices of the Broome County Social Services Department to seek financial aid, at which time he spoke to an employee of the Social Services Department named Karan Frank. As Claimant recalled,
I told her I was just released from prison...I showed her my release papers...she carefully screened the papers...she set up some type of appointment for me to see someone...I came back the following day for the follow up appointment...I was in the interview room with one of the case workers, I think it was the intake worker who was doing the evaluation on my status.

Karan Frank was called as a witness by the State. She testified that on February 25 and 26, 1999 she was "working at the front desk" at the Broome County Department of Social Services. Asked what she did when Claimant "came in to apply" she testified, "I went through the application...he had no ID at the time so we needed the parole papers...I took those, copied them and gave them back to him and told him that I needed to verify these and had him have a seat. And he did". Asked if she recalled "reading a condition about him dressing in female attire" Frank testified, "One of the things listed there was he couldn't...wear wigs, makeup, dress as a female". Asked what Claimant was wearing "on that day in February", she responded, "He had on a wig, he had makeup on, a V-neck woman's shirt, a black leather woman's jacket, jeans and he had some kind of a bag, a two-handled...black bag". Asked what it was about Claimant's appearance which made her believe that he was violating his condition of parole, Frank responded, "He was dressed as a woman with makeup and a wig". Frank then called the Division of Parole on the telephone. Asked what she related, she testified, "I just told them exactly what he looked like". Asked what happened, "the next day" she testified, "I can
't remember if it was me or security had to call Parole when he came in...when they got there, I took him from the waiting room into a caseworker's office...and I told him to have a seat and somebody would be with him and then they walked in". On cross-examination, Claimant asked Frank, "The following day that I came back...do you remember that day how I looked?" and she responded, "You were not wearing a wig, you were still wearing makeup. You had on jeans. I think you had on a tee shirt that day".[4]

Claimant recalled that when he returned to Broome County Social Services on February 26, 1999, some Parole Officers came and
placed me under arrest, handcuffed me...from that point I was taken to the Broome County Jail. I was booked...I remained there about three and a half hours. Shortly thereafter the Parole Officers...told me they were releasing me. That the information that they had received was not substantial...they had just basically told me that the charges were being withdrawn against me and that they were releasing me.

Claimant was of the view that
They lacked probable cause....One of my stipulations of parole is not to wear wigs and wear female attire. Let the record note that I am a transsexual and at that time I tried to do everything in my way to behave in the manner they wanted me to behave in. I do not believe I was in type of violation...they visually seen this for their selves, but yet nevertheless, they continued to go on with the violation, with the warrant.

Claimant added, "By releasing me...that pretty much...practically speaks for itself that they were negligent and they were wrong for the false imprisonment". Claimant then noted, with considerable logic,
One of the stipulations they imposed upon me, although I am a transsexual and undergoing female therapy, you know hormone treatment, is that I not wear any female attire. Although the Division of Parole...is aware of the fact that I take female estrogen...and they have considered to me to wear a brassiere knowing fully aware that I have breasts....I think that is inconsistent here with their policy here, knowing that I am undergoing female estrogen and female therapy, to allow me to wear a bra.

On cross-examination, Claimant was asked if he knew that his "parole was violated...not just for supposedly wearing a bra when you went into Social Services, you know that, correct?" Claimant responded, "No, I do not. That is what I was told". He was then asked if he was "aware" that "the violation revolved around two separate days in February, the 25
th and the 26th, of 1999, correct?" and Claimant responded that he was aware that Social Services gave the Division of Parole "information" on February 25th. Claimant was then asked if it was his belief that he was violated "just because you were wearing a bra?" and he responded, "That is my belief, yes, because I was not in any other female attire...". Claimant was then asked if it was not true that "one of the things" a transsexual does is "dress in female clothes?" and he responded, "Yes, that is true". Asked if, on February 25th and 26th, "Did you have female clothes that you would sometimes wear?", Claimant responded that on those dates "I did not have any female attire on". He also denied that he had makeup on. Asked about the bag he was carrying when he went to Social Services, he noted that he had a bag in the courtroom with him and that the bag that he carried on those dates was "similar to this, which is a book bag, which I often carry". Asked, "...were you wearing a low cut shirt, where someone could see the bra if you bent over?" Claimant responded, "I really do not recall". At this point in the trial, State's counsel showed Claimant a letter which he identified as "one of the letters that you sent, dated April 20th of this year when you were at the Clinton Correctional Facility". He asked the Claimant to read the letter and then he read the following excerpt from the letter to Claimant, "Mr. Gialanella...there apparently remain issues of dispute. I believe the defendant are at fault, perhaps not entirely, but the defendant contributed in part". Claimant was asked if he wrote that and he responded, "Yes, I did write that". Asked if it was still his belief that the Division of Parole "was only partially responsible for your arrest or the circumstances which led to your arrest on that day?" Claimant responded that "The State...contributed in portion, not entirely in its whole, but I believe that they played a significant impact in the arrest". Claimant then stated that he believed that the Division of Parole did not investigate and thus concluded, "So I'm going to say, yes, partially the State is liable as far as I am concerned". Claimant was asked if he was "aware of the Division of Parole regulations...that you can be arrested or picked up on a warrant for violation of your parole based on hearsay statements, correct?" and he responded, "Yes".[5] Asked if he knew "why" the condition that he was not to wear female attire cosmetics or wigs was imposed, Claimant responded that he did not know, but that he
thought it was just part of harassment because I have been gay for over 20 years. I have known Alan Simon almost 20 years now and he knows that I am gay and I am a transsexual...I take it as a form of harassment. They have nothing else better to do.

At the trial, Claimant was asked if the crime that resulted in his most recent imprisonment and which ultimately led to his parole was for Robbery in the First Degree and Assault in the Second Degree, and whether it involved "you accepting money from another male to perform sexual favors for him and then attempting to steal $150 from him, and when he resisted the theft you stabbing him in the back?" Claimant responded, "Something to that effect. It was my lover". Then asked, "But that did happen, correct?", Claimant responded, "Yes, it did. I was convicted of that, wasn't I". Asked to "approximate" how many of the last 20 years he had spent "in confinement in a local jail or in a State prison" Claimant responded that "Well, I honestly could not tell you", later adding, "You know, I don't keep track of that".

Claimant testified that after his arrest and processing, the Parole Officers who arrested him told him that they had "made a mistake and that they were withdrawing the charges". It was further Claimant's testimony that they apologized and gave him a ride home, adding, "and they should have".


The Parole Officers who took Claimant into custody, identified by Claimant as Lattimer and Jones, did not testify at the trial.


Alan J. Simon testified for the State. He is an Area Supervisor for the Division of Parole for the Binghamton/Elmira District. Asked the procedure when "a parole violation is instituted?", Simon testified, "a Parole Officer comes to a Senior Parole Officer and they discuss the case and generally the Senior Parole Officer issues the warrant". He further testified that Area Supervisors can also issue warrants.


At the trial, Simon was asked "what the circumstances were that led you to signing that warrant?" (
see supra, p 4) and he responded, "I received a telephone call from the caseworker who just testified, that Mr. Holmes was present in her office again and he was wearing female cosmetics and gave her the impression he was dressed like a woman. He gave the appearance of a female". He was then asked, "Was there any discussion about what took place the day before that?" and he responded, "Yes. She told me that she had been in contact with the officer, made a complaint to the officer that he had come dressed in female cosmetics and attire, giving her the impression that he was female or trying to appear female".[6]

Exactly what happened?


Well, Simon was asked, "What happened?" and he testified "Approximately after he was taken into custody, Parole Officer Lattimer informed me that Social Service Department keeps surveillance videotapes running in the area in which Mr. Holmes would have been visible. Mr. Lattimer was then instructed to view the tape, he did and he reported back to me". Asked what Lattimer told him, Simon recalled that "He said, his viewing the tape, it was equivocal in his mind whether or not you could say that Mr. Holmes was dressed in female attire. He was not comfortable with that evidence". Simon testified that he then contacted a member of the Parole Board and asked permission to "lift the warrant", which he got.


On cross-examination by Claimant, Simon was asked what Karan Frank told him on the phone on February 26
th and he responded, "That you were there again and you were wearing female cosmetics", but that Frank said nothing about Claimant wearing a wig. Simon was asked by Claimant what his "interpretation of probable cause" to violate parole was and he responded, "If I have information from a responsible person, and the information appears to be reasonable, we can proceed with a violation". Asked what he meant by a "reliable, responsible person" Simon responded, "That's a judgment call". Claimant asked Simon, "You must have believed that the information that you received from Karan Frank was not reliable in order for you to contact the Division of Parole and ask them to uplift the warrant. Is that not true?" and he responded, "That is not true". Asked then the basis for his contacting the Division of Parole, Simon responded, "There was other evidence which came to light which could be exculpatory, which could in fact raise the question as to whether or not you gave the appearance of a woman. I gave you the benefit of the doubt". Claimant asked Simon if he recalled what he was told by Lattimer with regard to "the fashion that I was dressed in, February 26th, when the warrant was executed?" and Simon responded, "No. The only complaint they had that day was female cosmetics. I do not recall my conversation with him". Asked if Karan Frank told him on February 25th that Claimant had a wig on, Simon responded, "No she did not. She told me that you were dressed in female attire". Asked what Lattimer told him on February 26th "the day you executed the warrant. How did he tell you that I looked?" Simon responded, "He was equivocal. He said that you could be not quite female, but not quite male". Simon testified that he never reviewed the videotape himself.

"...since parole release decisions are quasi-judicial in character, the State and its employees are absolutely immune from tort actions arising from such decisions" (
Tarter v State of New York, 68 NY2d 511, 515) and decisions with regard to special conditions are "beyond review in the courts as long as no positive statutory requirement is violated". (Matter of M.G. v Travis, 236 AD2d 163, 167, lv denied 91 NY2d 814; see also, Executive Law § 259-i [5])

In reviewing the proof presented at the trial of this claim, the Court is far from prepared to "surmise", as did Simon (
see supra, p 11, fn 7), that Claimant's criminal record somehow dictated the garb special condition, a condition that many, and not just transsexuals, would consider astonishing. In other words, in the abstract and based on the proof herein, the garb condition is difficult to understand, but these are deep waters into which the Court need not venture. There are a number of reasons why the dismissal of the claim with regard to this theory of recovery, that is imposition of the special condition in the first place, is not unjust. First, there is absolutely nothing to suggest that Claimant complained to the Parole Board that this condition was unfair and unjustified. Even if (and Claimant's proof is uncontradicted in this regard) the Parole Board was "aware" that Claimant was "undergoing female estrogen and female therapy" (see supra, p 8), apparently under the supervision of a medical professional, and that breast development had reached a point where Tewksbury thought it appropriate to verbally modify the special condition of parole to permit Claimant to wear a brassiere[7], Claimant cannot acquiesce to such a condition, take no steps to abrogate the condition as being unconstitutional, or arbitrary and capricious, not oppose its imposition, by, for example, pursuing the matter in a CPLR Article 78 proceeding (cf., Matter of Dickman v Trietley, 268 AD2d 914) and then come to this Court to seek damages because the condition was enforced, to his detriment.

However, that does not end the matter.


When Claimant arrived at the offices of Broome County Social Services on February 25
th, he had every reason to believe that, apart from the rest of his garb, he was entitled to wear a brassiere. That is because, whether he thought Tewksbury was authorized to verbally modify the garb condition, or whether Tewksbury was simply negligent in doing so, Claimant reasonably believed he had permission to wear a brassiere. Since Karan Frank apparently knew nothing about the verbal modification by Tewksbury of the garb condition promulgated by the Parole Board, an ultimate issue resolves to whether Claimant's brassiere played a definitive role in precipitating what occurred. In addressing that question we must look again at the testimony of Karan Frank, Simon and the lack of testimony by Lattimer and Jones.

Karan Frank testified that on February 25
th, after observing Claimant, she talked to Lattimer on the phone and that she specifically told Lattimer that Claimant was wearing a wig. Otherwise, she characterized the information that she passed on to Lattimer as, "I just told them exactly what he looked like". (see supra, p 6) This is a verbatim quote. The Court infers that when Frank referred to "them", she was speaking of Lattimer. Frank was not asked about Claimant's brassiere or brassieres in general. Frank concluded that Claimant had on a "V-neck woman's shirt". This answer, when juxtaposed with State's counsel's question about whether the Claimant was wearing a "low cut shirt where someone could see the bra if you bent over" clearly suggests that Claimant's brassiere did play a definitive role in precipitating what occurred.

The Court finds that the brassiere that the Claimant had on, and which, from Frank's point of view he was forbidden to wear, precipitated her call to Lattimer. Not having heard from Lattimer in court, the Court does not know whether he knew, at the time of this telephone conversation with Frank, that Claimant had been authorized to wear a brassiere. Beyond that, a "woman's shirt", not blouse and a "black leather woman's jacket", without any explanation of why either appeared gender specific, raises a serious question here about whether we are simply dealing with a matter of style or taste. Which brings us to February 26, 1999.


According to Simon, Frank told him that Claimant was in her office "again" (
supra, p 11) wearing "female" cosmetics and giving Frank "the impression" that Claimant was dressed like a woman. Thus, Simon concluded, that there was reasonable cause to believe that Claimant had violated the garb condition of his release. His "interpretation of probable cause" (see supra, p 12) jibes nicely with section 8004.2 (c) (see supra, p 9, fn 6) and certainly Frank, in light of her position, could logically be regarded as a responsible person, particularly since the information that she supplied to Simon was based on direct observation, not hearsay. Thus, the Court finds that there was probable cause for Simon to obtain and issue the warrant, and to dispatch Lattimer and Jones to take the Claimant into custody. We are not privy to exactly what went through the minds of Lattimer and Jones when they first saw Claimant on February 26th, but we can be certain of one thing. Neither of them thought that Claimant was violating the garb condition of his parole on that day. Otherwise, they would not have subsequently released him, apologized and then driven him home. Frank thought the Claimant was wearing makeup on the 26th . (see supra, p 6) It is highly unlikely that Lattimer and Jones reached that conclusion.[8] Obviously, therefore, they executed the warrant based on the conclusion that there was probable cause to believe that Claimant had violated the garb condition on February 25th. In this regard, one would think that wearing a brassiere would certainly have been regarded by both of them as a violation of the condition of Claimant's release "in an important respect" (see supra, p 9, fn 6), unless they were aware of the Tewksbury verbal brassiere exemption, which the Court finds must have been the case at the time they took Claimant into custody. That brings us to the question, when did Lattimer and Jones learn there were surveillance tapes which they could review so that they could make an informed decision with regard to Claimant's appearance on the prior day? The record before this Court provides no definitive answer to that question. Nonetheless, common sense dictates that they learned of the surveillance tapes after they had taken Claimant into custody and brought him to the Broome County Jail. In all likelihood, therefore, they returned to the Broome County Social Services office to review the surveillance tapes to see if there were other aspects of Claimant's garb, other than the brassiere, that were feminine and which violated the special condition. After viewing the tapes, both presumably concluded that there were not. Although Simon thought it a close call, we really do not know how closely Claimant ventured to the line dividing male from female garb in the view of Lattimer and Jones. It is reasonable to infer, however, that, having observed Claimant close to that line, the reason that Frank concluded that Claimant had crossed the line "in an important respect", was the brassiere.

While in this Court's view the parole revocation process which brought this matter to Court triggers some constitutional due process protection issues (
cf., United States v Brown, 899 F2d 189; Gagnon v Scarpelli, 411 U.S. 778; Black v Romano, 471 U.S. 606) and while it is true that such constitutional issues, of late, can be addressed in the Court of Claims (see, Brown v State of New York, 89 NY2d 172), this Court need not explore those constitutional issues because there is a common-law remedy available that "vindicates the right protected by the constitutional provision". (Remley v State of New York, 174 Misc 2d 523, 527, see also, Augat v State of New York, 244 AD2d 835, 837) The common-law remedy here is not false arrest or false imprisonment, as such, but rather negligence manifested by the fact that Tewksbury's verbal brassiere modification got lost in the shuffle. Since the Parole Board's decisions are quasi-judicial, the warrant issued by Simon as an authorized representative of the Parole Board was valid on its face and jurisdictionally sound and, therefore, even if it was erroneously or improvidently issued, it does not give rise to a cause of action for false arrest. (cf., Broughton v State of New York, 37 NY2d 451) It might give rise to a cause of action for malicious prosecution, but the facts in this claim simply do not come close to supporting such a finding. Further, there is no legally cognizable cause of action for negligent investigation of a crime, nor, it is reasonable to infer, the negligent investigation of a parole violation. (cf., La Mar v Town of Greece, 97 AD2d 955; Jestic v Long Is. Sav. Bk., 81 AD2d 255; Boose v City of Rochester, 71 AD2d 59) Further, the Parole Board, in authorizing the issuance of the warrant, was performing a governmental function and therefore cannot be held liable for negligence in performance of that function absent a special relationship, which obviously did not exist here. (see, Shinder v State of New York, 62 NY2d 945; Napolitano v County of Suffolk, 61 NY2d 863) Nonetheless, the Court finds that none of these immunity shields bar this claim.

9 NYCRR § 8003.2 (l) is entitled "Special Conditions" and provides "A releasee will fully comply with the instructions of his parole officer and obey such special additional
written conditions as he, a member of the Board of Parole or an authorized representative of the Division of Parole, may impose". (Emphasis added) Again, the Court is presented with an interesting issue (cf., p 14, fn 8) but this one must be addressed. That is, when a Parole Officer does abrogate a special condition imposed by the Parole Board, as opposed to adding one, must he/she do so in writing so that there is a paper trail upon which all can unequivocally rely? In this Court's view, common sense dictates that such requirement is implicit in this regulation. In other words, Tewksbury's verbal modification violated the regulation, and the Court finds that violation was a proximate cause of Claimant's detention. That is, the Court finds that, had Claimant furnished Frank with a written copy of Tewksbury's brassiere modification, Claimant would not have been taken into custody and booked. Since the applicable regulation was not followed, the State must respond in damages. (cf., Arteaga v State of New York, 72 NY2d 212)

Claimant shares a heavy responsibility for what happened. It is beyond understanding that he would arrive at Broome County Social Services with breast development, apparently acquired over years of estrogen therapy and sufficient to require the support of a brassiere, wearing a brassiere, hand Claimant's Exhibit 8 to Frank with the special garb condition set forth thereon, and not tell Frank about Tewksbury's verbal brassiere modification. Perhaps that is why he did not place the entire blame for his "arrest" on the State. (
see supra, p 9) More likely, however, he believed Frank was at fault. The Court finds that the State and the Claimant must share equal responsibility for what happened.

Fortunately, or unfortunately depending on how one views the matter, the damages sustained by Claimant, viewed in perspective, were modest.


While Claimant alleged that he was placed in restraints and forcibly removed from the Social Services "while citizen's stared in disbelief and appalled behind the abrupt apprehension" (
see supra, p 2) he made no mention of these citizen reactions during the course of the trial. More to the point, while Claimant undoubtedly found the experience of being taken into custody and booked distasteful, his distaste had to have been tempered by the fact that he had gone through the same process repeatedly in the past. That is, he had been repeatedly arrested and, in addition, had apparently violated parole on at least four prior occasions. Thus, while not exactly like breathing out and breathing in, the experience is second nature to him now.[9]

After carefully reviewing the proof, the Court finds that Claimant sustained damages in the amount of $400. In light of the foregoing apportionment, Claimant is awarded the sum of $200.


ENTER JUDGMENT.



October 13, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
The Claim contains numerous errors in grammar and spelling. The Court has elected not to "sic" the errors.
[2]
Unless otherwise indicated, all quotations are from the Court's trial notes or the trial electronic recording cassette tapes. Unless otherwise indicated, all quotations are verbatim.
[3]
This remark can be interpreted two ways. The first would be that Tewksbury simply wanted Claimant to keep his bra covered up. But the second interpretation is more thought provoking. Tewksbury was telling Claimant to keep this verbal amendment to the conditions of parole under wraps. The Court finds the first version the more likely.
[4]
Contained in Claimant's Exhibit 2 is a photocopy of a mug shot photo of Claimant which the Court finds was taken on February 26, 1999, when Claimant was booked at the Broome County Jail. In the photo, Claimant's hair is drawn up in a bun on the left rear side of his head somewhat like a ponytail that has lost its way. Only Claimant's upper body is shown in the photo. The upper body garb that he is wearing is best described as unisex.
[5]
9 NYCRR § 8004.2 (c) provides in pertinent part:
A warrant for retaking and temporary detention may issue when there is reasonable cause to believe that the releasee...has violated the conditions of his release in an important respect. Reasonable cause exists when evidence or information which appears reliable discloses facts or circumstances that would convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that a releasee has committed the acts in question...Such apparently reliable evidence may include hearsay.
[6]
Interestingly, Simon was asked about the special condition in Claimant's certificate of release "prohibiting Mr. Holmes dressing...in female attire or...leading others to believe that he is a female...did you know why that particular condition was imposed by the board?" (supra, p 3) and he responded, over a belated objection by the Claimant, "I can only surmise that his criminal history shows that he is dressed in female attire when one or more robberies had occurred and that as a course of his criminal history, to preclude him from further criminal activity, he's prohibited from dressing in that manner".
[7]
Can a Parole Officer verbally modify a special condition of parole set by the Parole Board, rather than just add a special condition? 9 NYCRR § 8003.3 entitled "Special conditions" reads in part, "A special condition may be imposed upon a releasee...subsequent to release....Each special condition may be imposed by a member or members of the Board of Parole, an authorized representative of the Division of Parole, or a parole officer". An interesting question.
[8]
The subject of makeup or cosmetics was addressed in the abstract at the trial. Claimant testified he wore none. Frank testified he did. Claimant is dark skinned. It was not Claimant's duty to describe what he was not wearing, it was the State's duty to describe what Frank observed, e.g., lipstick, eye shadow, rouge, etc. On this subject, the Court was left in the dark. The same goes for the wig. Claimant denied wearing one and Frank was not asked to describe what she saw in this regard that led her to believe he was wearing one.
[9]
Following the trial of this matter, the Court received a letter from Claimant advising of an address change. Claimant's new address? The local county jail.