New York State Court of Claims

New York State Court of Claims

REESE v. THE STATE OF NEW YORK, #2004-032-506, Claim No. 101856


Synopsis


Female wife of prisoner incarcerated at the Riverview Correctional Facility, claims that she was illegally strip searched while attempting to visit him on April 17, 1999. Department of Corrections answers that there was evidence claimant was attempting to introduce contraband into the facility which permitted them to do the search.


Case Information

UID:
2004-032-506
Claimant(s):
MADELINE REESE
Claimant short name:
REESE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101856
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Robert Sharon, P.C.
By: Longeretta Law FirmBy: David A. Longeretta, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Joel Marmelstein, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 28, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
SUMMARY
This claim alleges that on April 17, 1999, Madeline Reese ("claimant") was visiting her husband, Leon Holmes, at Riverview Correctional Facility ("Riverview") when employees of that facility assaulted and battered her, used excessive force against her, and deprived her of civil rights under federal and state law. These actions allegedly occurred when corrections officers strip-searched claimant while investigating her for narcotics trafficking within the prison. The claim also alleges the defendant was negligent in failing to supervise the employees who allegedly perpetrated these acts. Claimant seeks compensation in the amount of $1,000,000. The Court, in the decision herein, dismisses all causes of action.
FACTS
Claimant Madeline Reese married Leon Holmes on June 10, 1998 on Rikers Island (Tr, 9-10). He was incarcerated there from 1998-1999 and was then transferred to Riverview Correctional Facility in Ogdensburg, New York (Tr, 15, 17). In the late evening of April 16, 1999, claimant left her house at 20 Lenox Avenue in New York City and boarded a bus that arrived at Riverview at 7:00 A.M. on the morning of April 17, 1999 (Tr, 17). She had visited her husband for the first time at this location a month earlier in March 1999 (Tr, 18). After she disembarked the bus, she entered the Visit Process Center where she was given a number which allowed her to change her clothes, since she had traveled the entire night in the same clothing. She placed her clothes in a locker (Tr, 18, 21). She was then given another number to await entry into the Administration Building (Tr, 18).
When claimant entered the Administration Building she went through the normal procedure of removing her shoes, coat and jewelry and proceeding through a metal detector (Tr, 19). She did not have any packages with her (Tr, 21). As claimant went through the metal detector, she was approached by Correction Officer Nancy Charleston. Claimant was brought to a backroom where she was informed by Lieutenant Cornelison and Correction Officer Charleston that they had probable cause for a strip search of claimant. Claimant indicated that she did not want to be strip-searched since she was menstruating (Tr, 20). She claims this confrontation triggered an asthma/anxiety attack (Tr, 20). She was denied the visit to her husband and was told to return to the first building (Tr, 21). Before returning to the first building, she signed a document that acknowledged that she refused to be stripped-searched and that such refusal could result in a denial of the visit. This document was also signed by Lieutenant Cornelison (Tr, 25; Exhibit F). Claimant, who claims to be legally blind, was not wearing her reading glasses at the time she signed this form (Tr, 24, 72
).....[.] She stated that the document was not read to her, but that the correction officers told her what it was (Tr, 67, 73).
After returning to the first building, claimant was approached by State Trooper Taylor who asked her to accompany him to a private room. According to claimant, when they were in this room, Trooper Taylor said to her, " Why don't you give up the drugs?" and "you should go and have the strip search because we could take you to the hospital and make you stay another day, and if you go on the strip search you can go see your husband" (Tr, 26). Claimant testified that after further harassment by Trooper Taylor, she consented to the strip search (Tr, 27). Claimant was escorted back to Building 2 where a strip search was conducted by Correction Officer Nancy Charleston. Claimant maintains that the strip search was humiliating since Correction Officer Charleston was , "in my hair, in my ears, in my mouth, under my arms, under my breasts . . . . Then she told me to stoop and squat and, you know, looked through my privacy. That really upset me very much" (Tr, 29). Correction Officer Charleston did not find any contraband on claimant.

After the strip search was conducted, Lieutenant Cornelison informed her that she still would not be allowed to visit her husband. Claimant then signed a document which she did not read since she did not have her reading glasses (Exhibit G; Tr, 30). Again the document was not read to her, but she was told what it was (Tr, 67, 73). This document confirms claimant's consent to a strip search and acknowledges that she understood that the search "is not being done as a condition of visitation, but at the request of the New York State Police" (Exhibit G). After she signed the document, Lieutenant Cornelison told her to leave the premises (Tr, 32).

Claimant's husband was housed in Riverview for approximately six months prior to April 19, 1999. Claimant wrote to him twice a week. In these letters she agreed to bring packages to him when she visited or to send him money. In a letter to her husband dated February 22, 1999 (Exhibit A;
see also Tr, 40-41), claimant wrote:
I want you to know I recieved [sic] a Buck. 25. Your brother L Reynolds sent me. A Buck. And your other brother sent me. 25 cents. Babe my money situation is not cleared up yet. I might not be able to come the 27 . . . . I'll do what you ask with the money your brother sent you and I'll send you a package. OK. But I am not going to come visit you until. My money get straight. Because when I come see you I don't want no mix up with nobody's money.


Claimant maintained at trial that she obtained money from other inmates in separate envelopes to purchase food for them because they were denied commissary, and that she then sent the food in a package to her husband (Tr, 42-43,70). She did not remember the names of the inmates who sent her money for food (Tr, 63). Her husband would tell her what food to buy (Tr, 69-70). She only sent one of these food packages to her husband prior to the visit she had planned to make on February 22, 1999 (Tr, 43). She testified that when she visited him in March of 1999, she did not bring a package at that time. She also did not carry a package with her on her attempted visit in April 1999 (Tr, 38-39).

Correction Officer Nancy Charleston testified that she was a member of the Facility Awareness Committee at Riverview. One of the tasks of this committee, she stated, is to prevent contraband from being introduced into the facility. The committee monitors inmate mail and phone calls, tracks disbursements from inmates' accounts, and reviews confidential information from inmates (Tr, 84-86). A confidential note, a certain phone conversation, and disbursements from inmates' accounts to claimant led the committee to believe that Leon Holmes was a possible drug trafficker in the prison (Tr, 87). Correction Officer Nancy Charleston interpreted claimant's letter (Exhibit A) as indicating that claimant had received $125.00 from various sources within the prison for the purchase of an illegal substance (Tr, 91-93).

The first page of Exhibit B, the inmate transaction report, indicates that $25.00 was sent by Inmate Malcolm White to claimant on February 8, 1999. The second page of Exhibit B indicates that $25.00 was sent to three different inmates from three separate individuals who lived in the same apartment complex as claimant. Correction Officer Charleston believed that the disbursements of $25.00 to the three inmates were payments from Leon Holmes as narcotics commissions and that the $25.00 sent to claimant was indicative of a jail to street purchase of an illegal substance (Tr, 98-100).

Exhibit
CC[C] has two parts: the first two paragraphs represent notes that were made from a confidential source within the prison who purchased drugs from Leon Holmes but could not pay for them and the last two paragraphs are notes from a monitored conversation that Correction Officer Nancy Charleston overheard within the two months prior to claimant's April 17, 1999 visit (Tr, 104-105). The second paragraph of Exhibit C reads:
[Blank] went to the Box PC [protective custody] owes Holmes money for drugs and can't pay. He was given Reese's address to pay off debt. Money was suppose to go street to street. He also states he bought heroin from Holmes. States he sells heroin, coke and marijuana. It's brought in by Madeline Reese a/k/a Cinthia Reese a/k/a Maddin Holmes. Found [blank] to be accurate in his info. Two shanks [knives] were found resulting in UI [unusual incident report] 99-0015 two perps all on A-1
.

(See also Tr, 109.)

The notes from the monitored phone conversation indicate that Leon Holmes said to "tell M & M (nickname for Madeline Holmes [Tr, 171]) . . . when she comes on Saturday to ‘stand firm' there is a lot of s--- going on here best be firm. If they come at her with anything stay firm" (Exhibit C). As a result of the information received, Correction Officer Nancy Charleston went to Captain Klage to obtain permission to do a strip search of Madeline Holmes when she came to visit Leon Holmes. Captain Klage wrote a memorandum to the Watch Commander authorizing the strip search (Exhibit D).

Correction Officer Nancy Charleston was processing visitors in the Administration Building on the morning of April 17, 1999 and observed claimant coming through the metal detector. When Correction Officer Charleston inspected claimant's pass, she informed Lieutenant Cornelison. Lieutenant Cornelison came out to the lobby and asked claimant to come to a back room (Tr, 187). He asked claimant to consent to a strip search and presented her with a form to sign either consenting to or refusing to undergo a strip search. Correction Officer Charleston was present when Lieutenant Cornelison read the form to claimant, who did not consent to the strip search (Exhibit F; Tr, 124-125). She was told that the strip search was a condition of her visit (Tr, 188). Claimant was denied a visit with her husband, which the form clearly indicated may happen if a person refuses a strip search, and she was asked to leave (Tr, 126).

A short while thereafter, claimant returned to the Administration Building with Trooper Taylor. Correction Officer Charleston was informed that claimant now had consented to the strip search. Claimant was presented with a new document to sign that had been prepared by Lieutenant Cornelison (Exhibit G). Correction Officer Charleston was unsure whether claimant had her reading glasses with her but she did recall that claimant had a glasses case in her purse that morning (Tr, 139). Exhibit G indicates that claimant consented to the strip search and "that this is not being done as a condition of visitation, but at the request of the New York State Police." Correction Officer Charleston was certain that this form was signed before the strip search was conducted (Tr, 200).

After claimant signed the consent form, Correction Officer Charleston took claimant to the ladies' bathroom to conduct the strip search.CC[C]
Correction Officer Charleston asked claimant to remove one article of clothing at a time. During the search, Correction Officer Charleston noticed the absence of a tampon. When questioned about this, claimant responded that she was at the end of her menstruation cycle and had removed the tampon when she returned to the Visit Process Center earlier that morning after being denied visitation the first time (Tr, 143). Correction Officer Charleston found this to be odd since claimant had previously denied using the bathroom in the Visit Process Center after she refused the initial request for a strip search (Tr, 144-145). During that day, Correction Officer Charleston did not observe claimant having any asthma/anxiety attack (Tr,148).
Lieutenant William Cornelison was the watch commander at Riverview on April 17, 1999. He was informed that morning that claimant might attempt to introduce contraband into the facility. He reviewed Captain Klage's memorandum (Exhibit D) authorizing a strip search on the weekend following February 26, 1999 and called Deputy Superintendent Dale Artus at home to obtain permission to conduct the strip search since claimant had not visited as expected in February (Tr, 211-213). Permission was granted (Tr, 211). He went out to the lobby of the Administration Building to ask claimant to accompany him to a room where they could talk privately. He explained to her that he had information that she was possibly in possession of contraband and as a prerequisite for visitation she would have to consent to a strip search. He read a form (Exhibit F) to her that indicated that if she did not consent to the search she should put an "X" in a certain box and if she wanted to consent she should place an "X" in another box. She indicated that she did not want to consent (Tr, 216-217). Lieutenant Cornelison recalled that claimant was not wearing glasses and that she did not hold the form close to her face in order to read it. She checked off the proper box and signed the document (Tr, 217-219). During the conversation that he had with her, claimant had a tremor in both her voice and her upper lip. She did not have an asthma/anxiety attack (Tr, 219). Claimant was instructed to leave the Administration Building and return to the Visit Process Center (Tr, 221).

According to Lieutenant Cornelison, claimant left the Administration Building unescorted. After she left, Lieutenant Cornelison telephoned the Visit Process Center to inform them that her visit had been terminated. At that time, he learned from an officer there that a potential crime involving claimant, concerning the possession of narcotics, was being
committeddddd[d]. Lieutenant Cornelison telephoned Deputy Superintendent Artus again to inform him of this new development. Deputy Superintendent Artus authorized him to call the State Police (Tr, 222-223). State Trooper Taylor arrived and was briefed by Lieutenant Cornelison. Trooper Taylor went to the Visit Process Center to speak with claimant and returned with her to the Administration Building within 10 to 15 minutes. Lieutenant Cornelison informed Deputy Superintendent Artus that the State Police were now requesting a strip search of claimant, that she had consented to this, but they needed a female officer to conduct the search.
As far as the Department of Correctional Services was concerned, claimant's visit had been denied for the day and this strip search was not a prerequisite for a visit but was being conducted on behalf of the State Police (Exhibit G). Lieutenant Cornelison testified that his exact words to claimant were, "Ma'am this is being done strictly at the request of the New York State Police, this is not a condition of your visit. Whether you consent or not, Ma'am, you are not going to be allowed down back to visit Inmate Holmes" (Tr, 235). He explained Exhibit G to her and then claimant signed it in the presence of Correction Officer Charleston, Trooper Taylor and himself. The strip search was then conducted and no evidence of contraband was found (Tr, 236-237; Exhibit I). Claimant was then told that she had to leave State property. Lieutenant Cornelison prepared an unusual incident report concerning the incident (Exhibit J). At no time did he witness claimant experiencing an asthma/anxiety attack (Tr, 241).

Clint Taylor, a trooper for the New York State Police for approximately nine years, was stationed at the Ogdensburg Barracks on April 17, 1999 (Tr, 278). On that day he was working the 7 A.M. to 3 P.M. shift when he was dispatched to the Riverview Correctional Facility by an investigator from the Gouverneur Barracks (Tr, 280). He was told a subject who was visiting an inmate was suspected of possessing and trafficking narcotics (Tr, 279). He arrived at approximately 10 A.M. and spoke to Lieutenant Cornelison shortly thereafter (Tr, 280-281). He was told that they suspected claimant of having narcotics on her person (Tr, 279). Trooper Taylor then went to the Visit Process Center to interview claimant (Tr, 282).

Trooper Taylor asked claimant to accompany him to a small room off the lobby where he could introduce himself and conduct the interview (Tr, 283-284). Once in the room, Trooper Taylor identified himself, explained to claimant that they were investigating the possibility of her carrying or trafficking narcotics in the prison, and read the Miranda Rights to her (Tr, 283-284). He testified that he never told claimant she was under arrest (Tr, 284). Trooper Taylor asked claimant if she was carrying any narcotics and told her that "the only way she would even have a possibility of visitation is if she consented to the search at the request of the prison" (Tr, 284). He testified that he made this statement without having consulted anyone within the Department of Corrections (Tr, 287). Claimant responded that she did not have any narcotics on her and consented to the search (Tr, 285, 287). Trooper Taylor, whom the Court found credible, testified that at no time did he promise visitation in exchange for the search, nor did he threaten to detain her in any way (Tr, 288-290). Trooper Taylor also testified that claimant was upset during the interview process but he did not recall her saying that she was having an anxiety or asthma attack (Tr, 290).

Trooper Taylor, along with another correction officer, accompanied claimant back to the administrative building where he informed Lieutenant Cornelison that claimant had consented to a strip search (Tr, 293). At that time, Trooper Taylor testified that Lieutenant Cornelison gave claimant a consent form to sign (Tr, 293-294). He testified that Lieutenant Cornelison explained the consent form and requested that claimant sign it (Tr, 295). He was unsure whether Lieutenant Cornelison read the form word for word to claimant (Tr, 295). Claimant then signed the consent form and was accompanied by Correction Officer Charleston to a staff bathroom where the strip search was performed (Tr, 296). No contraband was found (Exhibit J; Tr, 298). Claimant was then told to leave the facility grounds by Lieutenant Cornelison (Tr, 299).
LAW AND DISCUSSION
The Inmate Visitor Program is intended to provide inmates under custody of the New York State Department of Correctional Services with an opportunity to maintain relationships with friends and relatives in order to promote a better adjustment to the community upon release (7 NYCRR 200.1). Inmates and their authorized visitors are expected to abide by the facility's rules and regulations and to follow the instructions and guidelines given by the facility staff (7 NYCRR 200.4 [a]). Violation of the visiting rules and regulations by either inmates or visitors may result in the denial or termination of a visit and the suspension or revocation of future visits (7 NYCRR 200.4 [b]).

The introduction of contraband into the prison facility by visitors is strictly prohibited (7 NYCRR 200.3 [b][5]). Contraband is defined as any item which is unlawful in the general population, can be used to cause death or serious physical injury, or is not permitted to be possessed by an inmate pursuant to the rules of the facility (7 NYCRR 200.3[b][5][i]). Narcotics, including marijuana, are considered to be dangerous drugs under these regulations (7 NYCRR 200.3 [b][5][[i][
b]).
If the officer in charge believes that further processing is required after the visitor has satisfied the normal visitor-intake process, the officer must contact his/her immediate supervisor (7 NYCRR 200.3[c]). If the supervisor agrees that further processing is warranted, the supervisor must receive the approval of the Superintendent, or his designee in charge, before a strip search can be requested of a visitor (7 NYCRR 200.3[c][1]). In order to justify a strip search of a particular visitor, the Superintendent or his designee must point to specific objective facts and rational inferences that he is entitled to draw from those facts in light of his experience (7 NYCRR 200.3[c][2]). The Superintendent must have reasonable cause to believe that drugs or other contraband is concealed upon the person of the visitor
(id.). Strip searches may not be ordered based on uncorroborated tips merely stating that visitors would attempt to introduce contraband into a facility where the informant's reliability cannot be assessed and observations of visitors upon arrival at the facility do not contribute to reasonable suspicion of contraband (id.).
In early 1999, prior to claimant's anticipated visit on February 26, 1999, the Facility Awareness Committee received evidence indicating claimant's husband at the time of the alleged incident, Leon Holmes, was trafficking drugs within the prison and that those drugs were being supplied by claimant (Exhibit C; Tr, 87-88). Correction Officer Charleston, a member of the committee, whom the Court found credible, testified that a confidential informant requested protective custody because he owed claimant's husband money for a drug purchase he had made from Holmes (Tr, 110). Prison officials tested the confidential informant's veracity by extracting other information from him about weapons being hidden in the building, that proved to be truthful (Exhibit C).

Correction officers then monitored communications between claimant and her husband. The letter from claimant to her husband dated February 22, 1999, discussed various transactions between other inmates and claimant (Exhibit A; Tr, 89). This was substantiated through the transaction report which detailed money sent to claimant or to inmates from persons at claimant's address (Exhibit B). Correction Officer Charleston testified that claimant's purchase of items for other inmates was unusual and would have raised suspicion in the mail processing room (Tr, 179-180). Correction officers also monitored inmates' telephone conversations in which Holmes said to tell claimant that, "when she comes on Saturday . . . be firm. If they come at her with anything stay firm" (Exhibit C).

While each of these factors on their own do not provide the "smoking gun" for evidentiary purposes, they do substantiate the tip received by the confidential informant.ddddd[d]
All of the evidence provided a reasonable basis for the Superintendent, or his designee, to believe that claimant would attempt to introduce contraband into the facility. This warranted the request for a strip search of claimant. Thus, correction officials acted consistently with the State Rules and Regulations regarding visitation to a correctional facility (7 NYCRR 200.3). The Department of Correctional Services followed procedure and was within its rights for asking for a strip search, and claimant was within her right to refuse it, which she did. Consequently, no cause of action arises from the initial request and refusal to consent to a strip search.
Further, the Court does not find any evidence that claimant was coerced into consenting to a strip search. The evidence indicates that claimant consented to the strip search after speaking to Trooper Taylor but before actually being searched (Exhibit G; testimony of Lieutenant Cornelison, Correction Officer Charleston and Trooper Taylor).

"Consent to a search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice" (
People v Gonzalez, 39 NY2d 122, 128 [1976], People v Flores, 181 AD2d 570 [1st Dept 1992]). "Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle" (id. at 572). In order to ascertain whether a claimed consent is valid, the court must examine the totality of the circumstances under which it was given in order to determine whether it was the product of a free and unconstrained choice (Colao v Mills, 3 AD3d 702, 704 [3d Dept 2004]; Schneckloth v Bustamonte, 412 US 218, 227 [1973]).
An important, although not dispositive, factor in determining the voluntariness of an apparent consent is whether the consenter is in custody or under arrest, and the circumstances surrounding the custody or arrest
(Gonzalez, 39 NY2d at 128; People v Garnsey, 288 AD2d 761, 762 [3d Dept 2001], lv denied 97 NY2d 754 [2002]). Trooper Taylor told claimant that he was assisting in the investigation into allegations of claimant trafficking narcotics into the prison (Tr, 284). Although he read claimant her Miranda warnings, he never arrested her, threatened arrest, handcuffed her or detained her (Tr, 284, 288-290). Giving an individual the Miranda warnings does not mean that that person is being arrested (see e.g. People v McKeehan, 2 AD3d 1421 [4th Dept 2003]). Claimant's testimony that Trooper Taylor threatened claimant with a detainment at a local hospital was deemed not credible by the Court (Tr, 26).
Another factor to be considered in determining the voluntariness of an apparent consent is the background of the consenter (
Gonzalez, 39 NY2d at 129). Those who have had prior contact with the police are more familiar with standard police procedures and less susceptible to police pressure or manipulation (People v Barronette, 129 Misc 2d 798, 803 [l985]). In the instant case, claimant had already refused the correction officer's request that she consent to a strip search. Claimant was clearly not intimidated by being in a secure prison facility or by refusing consent to correction officers, who are peace officers with power to arrest (Matter of Quinlan v City of New York, 33 AD2d 714 [3d Dept 1969]; CPL § 140.25[1]). There is also no evidence to suggest that claimant was so awed or intimidated by Trooper Taylor that she consented to a strip search.
Another factor to be considered is whether the consenter had been, prior to consenting, evasive or uncooperative with the law enforcement authorities (
Gonzalez, 39 NY2d at 129). If the consenter had been resistant and noncompliant prior to the consent, it would indicate the consent was obtained involuntarily (id. at 130). Claimant's initial refusal is not sufficient evidence of evasive or uncooperative behavior (People v Dobson, 285 AD2d 737 [3d Dept 2001], lv denied 97 NY2d 655 [2001] [individual's initial denial of possessing firearms in apartment, but subsequently cooperating with police by turning over firearms and consenting to a search, was not sufficient evidence that consenter was evasive or uncooperative]).
The final factor is whether a person was advised of his right to refuse to consent (
Gonzalez, 39 NY2d at 130). Such advice is not mandatory (id.). Failure to advise, however, may be considered in determining whether a consent was voluntary (id.). In the instant case there is no testimony which indicates that Trooper Taylor informed claimant that she had a right to refuse consent. However, she had just refused consent to correction officers who, as previously mentioned, are peace officers with power to arrest. Trooper Taylor also only asked her to consent to the strip search. He did not detain her, arrest her, or threaten her. Thus, whether or not claimant was implicitly aware of her right to refuse consent, Trooper Taylor's failure to advise her of this right is not enough to negate the voluntariness of her consent (People v Buggs, 140 AD2d 617 [2d Dept 1988]).
The Court believes claimant mistakingly thought that if she consented to a strip search, she may have received the visitation with her husband which had been previously denied. Trooper Taylor might have contributed to this mistaken belief by telling her if she was to have any possibility of visitation she would need to consent, but the subsequent statements by Lieutenant Cornelison would have corrected any such belief before she actually went through with the search. After examining the totality of the circumstances involving claimant's agreement to be strip-searched, the Court finds that her consent was voluntarily given and free from coercion.

Claimant alleges that the strip search and the events leading up to it constituted an assault and battery against her. In order to prove civil assault and battery, the plaintiff need only show that the defendant intended to inflict personal injury on her without her consent, that the defendant took action to carry out that intent, and that he did in fact injure her (
Buggie v Cutler, 222 AD2d 640 [2d Dept 1995]). In the instant case the Court has found that claimant voluntarily consented to be strip-searched. Therefore, a cause of action for assault and battery cannot be supported.
Claimant also alleges that excessive force was used in administering the strip search and in the events preceding it. Police officers and correction officers are charged under the law with using physical force when necessary and to the degree which is reasonably required to effect an arrest, maintain custody, and defend one's self or a third party, or in the case of a correction officer, to defend one's self, to prevent injury to person or property, to enforce compliance with a lawful direction, to quell a disturbance, or to prevent an escape (Penal Law § 35.30; 7 NYCRR 251-1.2[b], [d]). Claimant, in this case, presented no evidence to support this cause of action. There was also no evidence to support the allegations of negligent training or supervision.

Claimant also alleges that the strip search violated her state and federal constitutional rights. With respect to the allegations that claimant's federal constitutional rights were violated, that cause of action must be dismissed. The State is not a "person" amenable to suit under 42 USC §1983 (
Will v Michigan Dept. of State Police, 491 US 58 [1989]) and "the law is unequivocal that this section does not give rise to a cognizable claim against the State or a department thereof" (Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]). In Brown v State of New York (89 NY2d 172 [1996]), relying in part on the reasoning of §874A of Restatement (Second) of Torts, the Court of Appeals determined that a "narrow remedy" (id. at 192) for state constitutional tort is properly implied when such remedy is needed to assure a constitutional provision's effectiveness and further its purpose (id. at 187) (Octave v State of New York, Claim No. 97393, Motion No. M-62801, Mar. 30, 2001, UID #2001-001-019). No such need exists where, as here, claimant's "constitutional tort allegations may be analogized into existing common-law tort(s) for which there are adequate alternate remedies" (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Octave v State of New York, supra). These common law torts, if proven, afford remedies adequately protecting the interests at stake (Remley v State of New York, 174 Misc 2d 523, 527 [1997]). Therefore, the constitutional tort cause of action is also without merit.
CONCLUSION
The initial request for claimant to consent to a strip search was justified under the law, as was claimant's exercise of her right to refuse consent. Therefore, no cause of action can be supported in relation to this incident. Claimant's causes of action as they relate to the strip search eventually performed are without evidentiary support and are vitiated by claimant's consent, which the Court deems to have been voluntarily given before the search was conducted and free from coercion.

The Chief Clerk is hereby directed to enter judgment for the defendant, dismissing all of the causes of action set forth in this claim. Any and all motions heretofore raised and not decided are denied.

Let judgment be entered accordingly.



June 28, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims




[.]....

On cross-examination, claimant admitted that she was able to see the "I do not consent to a strip search" box on the form by holding the form within three to four inches of her face. She testified that on April 17, 1999, this is what she did in order to check off this box (Tr, 55-56).

[C]C

The Court admits Exhibit C into evidence pursuant to CPLR § 4518 since a proper certification accompanied the exhibit (see also Tr, 205). According to the person who wrote the third paragraph on this exhibit, part of a phone number had been redacted, but the witness did not identify any other information that was missing from the original document. The missing information, a part of a phone number, is not critical to the Court's analysis.

[C]CC

A strip search, which is more of a visual inspection, is less invasive than a strip frisk (Tr, 133).

[d]dddd

Lieutenant Cornelison provided little information about this potential crime, and there was no documentary evidence relating to it.

[d]ddddd

The Aguilar/Spinelli test is a two-prong test which holds that if probable cause is based on hearsay statements, it must be established that: (1) the confidential informant had some basis for the knowledge he is transmitting to the police; and (2) that he was reliable (Aguilar v State of Texas, 378 US 108 [1964], Spinelli v United States, 393 US 410 [1969]). Both of these cases were reversed by Illinois v Gates (462 US 213 [1983], rehearing denied 463 US 1237) which favored a lesser "totality of the circumstances" test. New York State, however, maintains the Aguilar/Spinelli test (People v Johnson, 66 NY2d 398 [1985]; People v Bigelow, 66 NY2d 417 [1985]). Although it does not appear that this test is used for searches within correctional facilities, claimant herein was not incarcerated and claimant's counsel argues that the test does apply to this search. The Court does not decide the applicability of the test in these circumstances but determines that, if it is applicable, the test is satisfied.

Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place (Bigelow, 66 NY2d at 423). The legal conclusion is to be made after considering all of the facts and circumstances together (id.). Viewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause may be found ( id.).

There are two ways to verify the information provided by a confidential informant (id.). The most reliable is through his/her own description of underlying circumstances personally observed (Johnson, supra). Failing this, however, a confidential informant's basis of knowledge may be verified by police investigation that corroborates the defendant's actions or that develops information consistent with detailed predictions by the informant (Bigelow, 66 NY2d at 423).

In the instant case the confidential informant bought narcotics from claimant's husband, giving him firsthand knowledge of claimant's husband's drug dealing (Exhibit C). The confidential informant also stated that claimant was the one supplying her husband with the drugs (id.). He said that inmates were making payments to claimant in exchange for narcotics from her husband (id.). Lack of specificity required further investigation in which funds were traced going from other prisoners to claimant and funds being sent from claimant's apartment complex to other prisoners (Exhibit B). That, combined with monitored written and telephonic communications, served to corroborate the confidential informant's basis of knowledge.

In evaluating a confidential informant's reliability, courts usually talk about his "track record", i.e. his past performance as a supplier of information (Johnson, 66 NY2d at 403). In the instant case, the confidential informant satisfied the second prong of the Aguilar/Spinelli test since he proved to be reliable on one previous occasion which resulted in the confiscation of two weapons.