New York State Court of Claims

New York State Court of Claims

KIRKLAND v. THE STATE OF NEW YORK, #2000-015-523, Claim No. 97990


Synopsis


Claimant's failure to testify that radio was not altered prior to its confiscation by prison officials prevents his recovery of money damages for its destruction.

Case Information

UID:
2000-015-523
Claimant(s):
LEROY KIRKLAND
Claimant short name:
KIRKLAND
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97990
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Leroy Kirkland, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 20, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision results from the trial of a claim which alleges that at approximately 4:50 p.m. on the fifteenth day of December 1997 certain of the claimant's property was confiscated and later destroyed by correction officers at the Mohawk Correctional Facility in Rome, New York.

According to the claimant he was asleep in the dormitory on the date of the incident when his property, consisting of a Walkman and headphones, was confiscated from another inmate who was using it with claimant's permission. The claimant was charged with an "unauthorized exchange" and the property was confiscated pending a hearing. Claimant testified that a tier 2 hearing was held on December 17, 1997 and that the ticket which he had been issued was dismissed at that time. Claimant also testified that the Walkman and headphones which had been confiscated were not produced at the hearing and that they have never been returned to him. Claimant estimated the value of the Walkman at between $54.00 and $59.00, including the cost of the headphones, and testified that he had purchased it by mail order five weeks prior to its confiscation. Claimant also seeks to recover $500.00 for the mental discomfort he suffered as a result of being deprived of his property but offered no testimony in this regard at trial.

Defendant presented the testimony of Ronald Manell who is a Lieutenant at Mohawk Correctional Facility and has been so employed since 1990. Exhibit A, a tier 2 hearing "packet" relating to the claimant's tier 2 hearing held on December 17, 1997, was received into evidence. Exhibit A reveals, and Lieutenant Manell's testimony confirms, that the claimant was found guilty at the hearing of an unauthorized exchange. The disposition sheet from the hearing indicates that the confiscated radio and headphones were to be returned to him "if unaltered". Exhibit A does not show the actual disposition of the radio and headphones but only that they were to be returned to the claimant upon a determination that they had not been impermissibly altered.

Defendant also presented the testimony of Jeff Cianciola, who has been a correction officer employed at Mohawk Correctional Facility for nineteen years. Correction Officer Cianciola investigated the claimant's institutional claim for return of the radio and headphones or payment for their value. The results of his investigation are contained in the memorandum admitted into evidence as a business record marked for identification as Exhibit B. In the memorandum, Sergeant Cianciola determined from other institutional business records not produced at the hearing that the items were destroyed because they were found to have been altered. The memorandum reflects that the items were destroyed by Correction Officer Heath on December 19, 1998 [
sic] and logged in the contraband book.
Although claimant stated at trial that he did not see how the subject property could have been altered since it was only five weeks old when confiscated, he did not offer direct testimony that, in fact, the property had not been altered prior to its seizure.

The burden of proof in this matter is upon the claimant to show that he was entitled to the return of the confiscated property in order to now recover its value. His failure to testify to the unaltered condition of the property is fatal to this claim in light of the business records of the institution which indicate that the property was determined to be altered, although the nature of the alterations was not specified. As altered property it was classified as contraband and destroyed. Without proof to the contrary claimant was not legally entitled to its return and may not recover the value of the Walkman and headphones.

Therefore, the portion of the claim seeking $500.00 for mental discomfort will be dismissed. The claim is, in all respects, denied.

Let judgment be entered accordingly.


December 20, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims