Egein Howard alleges in Claim Number 106367 that Defendant's agents at Fishkill
Correctional Facility (hereafter Fishkill) committed battery on May 11, 2002
when they performed a strip search in violation of New York State Department of
Correctional Services (hereafter DOCS) regulations as she was processed for a
visit with her incarcerated husband, Matthew Howard. Trial on the issue of
liability was held on July 21, 2005.
Ms. Howard testified that she had visited her husband on other occasions at
both Fishkill and other facilities, throughout his period of incarceration,
including Downstate Correctional Facility and Schenectady County Correctional
Facility. From January 2002, when Mr. Howard was first incarcerated, to May
11, 2002, Claimant estimated she had visited him at these correctional
facilities "every other weekend."
During these visits she always walked through a metal detector. On some of these
previous occasions, she stated, her "underwire bra" had "set off the detectors."
Claimant explained that "because of the size of her chest" she normally wore an
underwire bra. When wearing it triggered the metal detector on other occasions,
she had been instructed to go to the ladies room, remove the brassiere, place
the brassiere in a bag provided by the facility, and furnish the bag to the
officers. The brassiere would then be examined by the officers and - when they
had ascertained that there was nothing amiss - returned to the Claimant for her
to put it on again in the ladies' room. Generally, they would move a metal
scanning wand about her person while she was not wearing the bra.
When she had visited Fishkill before and set off the metal detector, they had
only "wanded" her; they had not gone through the process of her removing the
bra and then redressing.
On May 11, 2002, Claimant went to visit her husband with her stepson, Richard
Howard. The metal detector went off as she passed through the scanner. She
"told the officers that it was [her] underwire bra." Officer Piazza - whom she
identified at trial - told Claimant to go with her to the ladies' room. Once in
the ladies' room she told Claimant to take off her shirt, take off her bra, and
lift up her breasts. Claimant said that when she lowered her breasts, the
officer announced that "she was not done," and told Claimant to cup her breasts
by her nipples and shake them. Claimant said she complied with the request,
asking the officer simultaneously whether "this was legal", but was told that
"if . . . [she] wanted to see . . . [her] ‘effing husband it was and . . .
[she] had to do it." Claimant testified that the officer then directed her to
take off her skirt and underwear, and squat and spread her labia so the officer
"could see." Claimant said: "I was crying, and then she told me she was done
with me." Officer Piazza then left the ladies' room. Claimant dressed and then
walked back out and waited for her stepson to go in to see his father.
Claimant did not say anything right away to her husband, but they then had a
conversation about the incident triggered by Mr. Howard's inquiry, "after a
while", as to why she was upset. Her stepson Richard told her husband "what had
happened, and then . . . [she] told him what happened." Thereafter, Claimant
indicated she spoke "to Sergeant Ray and another officer", and was told that the
previous weekend a visitor had come to the facility and had hidden a knife
underneath her breasts, and that's why Claimant was searched. The conversation
took place in the courtyard where "they were doing the outside pictures . . . we
spoke to the officer there." Claimant then identified an individual in the
courtroom as Sergeant Ray. During the course of the trial the man she identified
as Sergeant Ray correctly introduced himself as Deputy Jimmie Harris and gave
She learned from one of the officers about an incident the weekend earlier, and
also learned from him that there was a protocol to be followed to engage in a
more intrusive search. She was given to understand that a sergeant was to be
called, and written permission was to be given by the person to be
The following day Claimant again visited her husband, setting off the metal
detector as she walked through the reception area. On that occasion, however,
she was searched with a wand. Correction Officer Piazza was not on duty that
On cross-examination Claimant testified that she told first her husband, then
Sergeant Ray in her husband's presence exactly what occurred during the bathroom
search. She again misidentified "Sergeant Ray" in the courtroom, saying that he
was told all the details. Claimant confirmed that she spoke also with Deputy
Harris, telling him that she "was searched", ultimately giving him all the
details as to what happened, as well as another officer whose name she could not
recall. She said that when she came out of the bathroom, however, she did not
tell her stepson what happened, although on direct testimony she had indicated
that her stepson told her husband "what had happened" to her when they met in
the visitors' room. She confirmed again that only she and Officer Piazza were
in the restroom.
Claimant admitted that her husband "was doing 2 to 4 years for grand larceny",
and that she herself had pled guilty to petit larceny, and was sentenced to time
served, for the same underlying crime. She said they "stole gold."
On cross-examination, she also added she was also told by Officer Piazza to rub
her labia, as opposed to spreading her labia. She agreed that during her
deposition she did not mention spreading or rubbing her labia at all, nor did
she include these actions as having been reported when asked to describe at her
deposition what "exactly" she told Sergeant Ray and Deputy Harris.
Claimant identified a three-page statement she had handwritten in or about June
2002, describing the incident. [Exhibit A]. In the portion relating to what
occurred after the metal detector was set off, the statement provides: " I was
taken to the employee restroom where I was told by CO Piazza I had to strip, I
asked if this was legal and she said if I wanted to see my fucking husband it
was and to do what she said. I started crying. She told me to take off my
shirt, shake it and hand it to her. I was then told to take off my skirt, my bra
and my underwear and do the same thing. She then instructed me to lift my
breasts, separate them and shake them. I put my breasts down but the CO yelled
at me that she was not done and to lift them again, but this time I was told to
pick up my breasts by my nipples. I was then instructed to squat."[
She conceded at trial that in this written statement too,
she made no mention of having been instructed to spread or rub her labia.
Toward the latter part of cross-examination when Counsel asked whether Claimant
recognized another individual who walked into the courtroom, Claimant's voice
became louder and she became more emotional and angry, proclaiming "I know that
I have spoken to him before, but I don't remember his exact name . . . getting
somebody's exact name was not very important to me at that time when I was
trying to figure out why what happened to me
happened . . . ." After the outburst, the Assistant Attorney General had no
further questions nor did Claimant's Counsel.
Only his stepmother returned on the following day for a visit.
Matthew Howard, Claimant's husband, also testified. On May 11, 2002 he noticed
Claimant was late in arriving for their visit. When he saw her come into the
visiting room she was "walking with her arms across her chest", and looked
"angry and tearful at the same time". Richard was walking in shaking his head -
"I knew something was wrong right off the bat. When I was told by the officer at
the desk that I could go in to see my visitors, I gave my son a hug, turned to
my wife gave her a hug, and then asked her immediately what was wrong." They
walked out to the picnic area. She was visibly upset and Mr. Howard pressed her
for a response. She told Mr. Howard what happened as they sat in the area where
"they take the outside pictures." An officer was standing right behind them, so
Mr. Howard got up, went to him, and started asking about procedures for searches
of visitors. The conversation lasted about 20 minutes. He learned that the week
before "a big black lady came in with a box cutter underneath her breasts, and
that's why they were doing it now." Mr. Howard was referred to a sergeant,
ultimately speaking with Sergeant Ray. He could not recall the name of the
correction officer he spoke with in the yard.
When he and his wife spoke with Sergeant Ray they were told that "it was a
procedure, that he didn't believe his officers did it, and that it can't be
done" but to feel free to file a grievance. They also spoke with Deputy
Two hours later, ostensibly while the visit was still ongoing and in an area
near the vending machines Mr. Howard claimed "I had a conflict with Sergeant Ray
because I did tell Deputy Harris about this, told him what went on, and
Sergeant Ray took me in the back with two of his buddies and threatened me that
if I took this any further Sergeant Ray was to be called on his home phone and
The visit lasted until 2:30 p.m. or so. Claimant came again to visit the next
day without incident. Mr. Howard said there had been no disciplinary
proceedings commenced against him either before or after the incident.
On cross-examination he confirmed that when they spoke with Sergeant Ray in the
picnic area, although he started to describe what happened, it was his wife who
told Sergeant Ray about the incident. He did not remember her telling Sergeant
Ray that she had been instructed to spread and rub her labia. During the
conversation with Deputy Harris - held in the "protective custody area" -
Claimant and Mr. Howard spoke with the Deputy while his son was two tables away.
During that conversation, he said she did not indicate she had been instructed
to spread and rub her labia.
Mr. Howard admitted that with regard to the alleged threat by Sergeant Ray, he
did not file a grievance. He said he "had to sign in for protective custody and
was transferred to another prison."
Mr. Howard also admitted that he "forced . . . [Claimant] to take a conviction"
with regard to the larceny charges "on the day of trial." He said: "I received
the jewelry, and I gave it to her telling her to sell it and she sold it . . . I
didn't tell her it was stolen." He explained that he "had a lot of witnesses"
with regard to his part of the crime whereas she "got the check" for the
Arlan Pelc, a Captain at Fishkill for five years also testified. He indicated
that he was familiar with the policies concerning when and under what
circumstances visitors to the facility may be strip frisked. He testified that
"probable cause" was required for a strip search, as well as permission from
the officer of the day or the Deputy Superintendent of Security, as set forth in
Directive 4900 "which explains in detail what the circumstances would be." He
said he did not have Directive 4900 with him. Shown a copy of the regulation,
the witness confirmed that although 7NYCRR §200.3 [Exhibit 1] is "not the
same, but similar, our Directive 4900 is most likely based upon this." Captain
Pelc acknowledged that 7NYCRR §200.3(c) - concerning procedures for strip
searches - is contained in Directive 4900.
Captain Pelc testified that the officer of the day on May 11, 2002 was the
Deputy Superintendent of Programs, James Harris. Without having the directive
in front of him, he "couldn't be sure, but . . . [Captain Pelc] believed that"
the procedure was that Deputy Harris would have to be notified before a strip
search could be made. He said that there was no surveillance equipment on May
11, 2002 in the visitor area where the metal detectors are located.
Captain Pelc said approximately one month later - in mid-June 2002 - the
facility received notice that there had been an incident allegedly involving
Claimant. An investigation was then conducted. Officer Piazza was questioned
and gave a written statement. He could not recall if Officer Piazza denied that
an incident occurred - though he "believed so" - having last reviewed the
statement several weeks before coming to testify. Sergeant Ray was the
investigating officer concerning the matter. Captain Pelc could not
specifically recall if Sergeant Ray found that the incident did not occur as
described in the letter of complaint from Claimant's counsel dated June 19,
Captain Pelc then reviewed the letter of complaint from Claimant's counsel,
Superintendent Mazzuca's letter to Claimant's counsel dated June 28, 2002
indicating that Officer Piazza had denied conducting a strip search of Claimant,
Officer Piazza's statement, a memorandum from Sergeant Ray concerning the
"visitor complaint," and some logbook entries from the visiting area, and agreed
that these documents were the bulk of the investigative file on the matter.
[Exhibit 3]. Sergeant Ray wrote that Claimant's allegations were "without merit
and baseless" and reported that he was on duty on May 11, 2002; and that
Claimant did not report any employee misconduct to him or any other supervisor
on Officer Piazza's part, although she would have had "several opportunities to
report the alleged misconduct . . . " [
Based upon Sergeant Ray's finding the facility ended the
Captain Pelc agreed that had the scenario been as described by Claimant, the
actions of the correction officer would have been in violation of Directive 4900
and would have constituted improper conduct.
On cross-examination, Captain Pelc confirmed that the first he ever heard of
any complaint concerning Claimant was when the Superintendent received the June
19, 2002 letter from Claimant's counsel. [
Exhibit 3]. The witness stated that he had been employed by the New
York State Department of Correctional Services (hereafter DOCS) for 24 years,
and noted that the allegations of this claim were "unusual." He said this was
because of its sexual nature. Additionally, Captain Pelc had never received any
complaints about Officer Piazza either before or after this alleged
On redirect examination, the witness was asked whether, after deleting the
references to the directive to spread her labia, the conduct described by
Claimant would still be improper in his view. He said that it would be.
No other witnesses were called nor was any other evidence submitted on
Claimant's direct case.
Evelyn Serrano-Fox, a correction officer who was working on May 11, 2002 in the
visitor processing area on the 8 a.m. to 4 p.m. shift testified. She described
the procedures undergone by all visitors to Fishkill prior to being allowed
entry. Visitors "come in through the trailer and get a pass; then come into
the building and wait until called by number. You go to processing where you're
given an ID and entered into the computer; then you go to scanning where you
take off your jewelry, and take out your wallets, or handbags and are searched,
and you go through a metal detector. If the metal detector is set off you are
scanned by hand, then once cleared, you go to the security gate, and then to
the visiting room. Correction officers are at every step." The witness
indicated that no one had ever complained to her about the incident Claimant
alleges occurred. She said that she would have remembered any complaint because
"it was kind of bizarre." Officer Serrano indicated that she knew Officer Piazza
professionally and had never heard that Officer Piazza was homosexual or other
On cross-examination Officer Serrano confirmed that her knowledge of Officer
Piazza was purely professional and she was unaware of her sexual preferences.
She also acknowledged that the processing area she was in on May 11, 2002 is
separated by a wall from the scanning area, although they are next to each
other. She confirmed that she could not see what happens in the scanning area
from her vantage point in the processing area.
Darryll Fox, a correction officer at Fishkill for 11 years and "very possibly"
assigned to the visiting room on May 11, 2002, testified that the first he heard
of the Claimant's allegations was "probably a couple of months after the alleged
incident." On May 11, 2002, no one, including the Claimant, had ever approached
him with these allegations. He agreed that he would have remembered such
allegations because they were unusual.
On cross-examination Officer Fox said that if he had been stationed in the
visiting room, he would not have seen the scanning area.
Manuel Tirado, a correction officer at Fishkill for 15 years, who was working
in the visiting area on May 11, 2002 with Officer Fox, confirmed the same
information given by Officer Fox, as did Christopher Casey, another correction
officer working at the security gate area on May 11, 2002. Officer Casey added
that on the day of the accident he did "not hear remotely of any allegations by
Claimant," but did not recall speaking with either Sergeant Ray or Deputy Harris
on May 11, 2002.
Ronald Ray, a sergeant at Fishkill on May 11, 2002 who has since retired, also
testified. He said he first heard that there were allegations concerning Officer
Piazza when Captain Pelc called him in and showed him the attorney's letter to
the Superintendent dated June 19, 2002. The witness said he did not recall ever
seeing the Claimant before the day of trial, nor did she ever tell him that
officer Piazza had behaved improperly toward her.
The witness said he heard Matthew Howard's testimony at trial concerning
threats he purportedly made to Mr. Howard. Sergeant Ray testified that he never
did or said any of the things described, nor did he recall Mr. Howard in any
event. He explained: "[There are] 1700 inmates at that correctional facility
and I don't recall ever having a conversation with him, or remember him. When I
walk through the jail, it's easy to distinguish me because I wear a white shirt
so I kind of stand out. A lot of inmates know me but I don't know them." He
reiterated: "I never threatened him with two other correction officers, I don't
even remember a conversation with him."
Sergeant Ray said that he had known Officer Piazza for "a long time", and that
both were members of military. She was "recently promoted" and has a "high
security clearance with the military". As part of obtaining that clearance,
Sergeant Ray had been interviewed. During the interview, he had reported these
allegations to the investigator.
On cross-examination, Sergeant Ray confirmed that the investigation by the
military was sometime after he received notification of the allegations of this
incident, but he was unsure of how long ago it was. He could not say whether
Officer Piazza's military career was common knowledge, but could say that in
addition to chatting with Officer Piazza about the military he had spoken to
others about her military career. He agreed that he respected Officer Piazza
for continuing her military career while a correction officer, and did what he
could to assist her in that endeavor.
Deputy Superintendent Jimmie Harris, now retired from DOCS after 22 years, and
who worked at Fishkill from June 2000 to March 2003, also testified. He said
that as Deputy Superintendent of Program Services, he supervised "all the
programs that go on in the facility - including counseling, guidance, academic,
vocational, and mailroom programs - and is second to the superintendent in that
respect." He said that he was working on May 11, 2002.
He confirmed that Claimant misidentified him as Sergeant Ray during the course
of the trial, and acknowledged that he had heard her testimony in its entirety,
including her allegations that she had told him - as "Sergeant Ray" - about the
alleged strip search by Officer Piazza. Deputy Superintendent Harris said that
the first time he heard of this alleged incident was when the Assistant Attorney
General telephoned him "a couple of months ago." He had never spoken with
Claimant to his knowledge.
On cross-examination, the witness confirmed that he had never worked as a
correction officer at Fishkill or elsewhere. He said that he would have been
in civilian clothes when working on May 11, 2002, and was likely to have been in
the visitors' room on that day because he was Officer of the day. It would have
been a requirement that he make rounds. He described the visitor intake area as
"not very large, and otherwise confirmed the same description of the process
provided by Officer Serrano-Fox.
Dominica Piazza, currently employed by DOCS as an inmate counselor at Green
Haven Correctional Facility, also testified. She said that in addition to her
DOCS employment she has been in military intelligence, working for the army
reserves for eight and one half (8½ ) years, and is currently a "Lieutenant
working as an aide-de-camp to a one star general." She indicated that she has a
degree in psychology, and has a 6 year old child.
Officer Piazza testified that she first heard of these allegations in late June
2002, when she reported back to work after a few days off, and was told to go
and see the Deputy Superintendent of Security. From her records she could
confirm that she was working at scanning on May 11, 2002 - an assignment she
had before - but had "never had any bizarre experience, nothing that stuck out
in my head, so I can't say that anything more happened that day than any other
day that I worked in scanning." She said she did not recall the Claimant "at
all"; and did not recognize her.
She described herself as a methodical person, and said that her scanning
procedures followed a routine sequence. As visitors came up to the narrow area,
there were tables onto which they would place their belongings - such as shoes,
jewelry, wallets, and purses - and then they would walk through a metal scanner.
If the scanner went off, "typically, the female officers would do hand-scanning
for female visitors, while male officers would hand scan the males. If somebody
went off, we would let them know we had to check the area in question, and we
would take them into the bathroom. Typically, this was a matter of 30 seconds.
They would just have to show the immediate area that was going off - if a bra,
just show that little area - there was no need to be pulling up your shirt. We
would be in and out." In her experience she had never once "gone beyond 30
seconds" in the bathroom.
Officer Piazza sat through the trial, including Claimant's testimony. She said
she never did anything described by Claimant.
During her career as a correction officer, she has never been
On cross-examination, she confirmed that she had been a Lieutenant in army
intelligence since February 2004. She explained that she had a "top-secret
security clearance the entire 8½ years, and has to go through routine
investigation every 5 years." Her clearance "was up" in January 2003 and was
She agreed that the processing and scanning areas are not visible to each
other. She estimated that the dimensions of the processing area were
approximately 12 feet by 13 feet and that the scanning area was approximately 8
feet by 12 feet. She said the scanning area is "narrow and long". Beside the
scanning area is a one stall bathroom with a bench outside of it.
Once an individual is scanned, he would walk about 20 feet to the security gate
where Officer Casey worked. "It was all within one line." Officer Casey would
take the visitor's pass, and then the visitor could go into the visiting area.
From the security gate - "if you poked your head around" - the scanning area was
visible. From the gate, who goes in and out of the bathroom in the scanning
area can be seen.
She agreed that the allegations made by Claimant "have had an effect." She said
"people laugh and chuckle at me, and I have not worked much in scanning". She
confirmed that the officers who testified are all "business acquaintances" and
thought that "yes, they would want to see me prosper - as would anybody want to
see someone prosper - but they would not lie for me."
In May 2002 Officer Piazza was a Sergeant in the army reserves. Had the
allegations been true, she "couldn't say" that the facts would harm her
promotion to Lieutenant, but readily agreed that such facts would affect her
security clearance. She explained "they don't need somebody with high clearance
who has done behaviors like that."
Battery is the intentional and wrongful physical contact with another person
without that person's consent.
Coopersmith v Gold
, 172 AD2d 982, 984 (3d Dept 1991); Mason v
, 108 Misc 2d 674 (New York Co Sup Ct 1981) see Clayton v
, 18 Misc 488 (New York Co Sup Ct 1896). It is the Claimant's burden
to prove her case by a preponderance of the credible evidence. As the trier of
fact and law, charged with assessing the credibility [see Raynor v
State of New York
, 98 AD2d 865, 866 (3d Dept 1983)] of the various
witnesses and evaluating the evidence, the Court finds that the battery
described by Claimant did not occur and that the State is therefore not
responsible for the alleged intentional tort of its employee.
Overall, the Court cannot credit Claimant's testimony. None of the individuals
to whom she claims she made immediate reports recall conversations with her.
Indeed, she misidentified an individual as Sergeant Ray - the man she claims she
and her husband first spoke with - and appears to have embellished the tale
since it was originally brought to the attention of the Superintendent at
Fishkill through the statement included with her attorney's letter. In her
written statement and in her deposition she described the alleged strip search
one way, and in her trial testimony she described it differently. She said that
when she came out of the bathroom she waited for her stepson, while he had
indicated that he was standing near a bench waiting for her. Observing her
demeanor as she described the invasive procedures she was allegedly subjected
to, her outbursts during her testimony appeared calculated to forestall further
questions, rather than the product of emotion.
The testimony of Matthew Howard is not credited. He admitted to having
orchestrated the Claimant's entry of a guilty plea to petit larceny in
connection with the crime he himself had committed. Additionally, he added
details during the trial never raised before, concerning, for example, alleged
threats by Sergeant Ray; and had an inconsistent recall, too, of what personnel
were spoken with and the location of the alleged conversations. He said he
spoke with Sergeant Ray in the picnic area, and spoke with Deputy Harris in the
protective custody area. Claimant never testified as to speaking with someone
in other than the picnic area.
The Claimant's stepson, Richard, saw nothing except that he saw the Claimant go
to the bathroom with Officer Piazza, and that she later emerged "crying." Since
he himself was being searched further after setting off the metal detector, it
is clear he was not really sure how long Claimant had been in the bathroom when
she emerged. He said he had been standing near a bench outside the bathroom.
As noted, Claimant said that when she came out of the bathroom, she had to wait
In contrast, Officer Piazza convincingly described the procedures she follows
when conducting searches. She readily described the search procedure she
generally used after wand scanning was insufficient - even though such procedure
is arguably outside the regulatory standards [
7 NYCRR §200.3(b) and (c)] although not intrusive to the level
of a full strip search - and also readily acknowledged that there could be a
negative impact on her security clearance in military intelligence if Claimant's
allegations proved true. Nonetheless, her testimony was measured and consistent,
and was further supported by the testimony of the officers to whom Claimant
asserted she told of the allegations on the day in question. Their testimony
indicated that no such reports or conversations between Claimant or Mr. Howard
and themselves had occurred. Officer Piazza did not remember Claimant, and
denied any version of the events described by Claimant.
Finally, the setting of the allegations of the Claim belies that such
activities occurred as well. Many visitors are processed through various stages,
with correction officers at every stage, moving people through. It is not
credible that an activity delaying the process by ten minutes - effectively
holding up the line - was not recalled by any officers along the way, or that a
very upset woman was not noted, or that Claimant herself did not speak to anyone
until prodded by her husband.
Upon review of all the evidence, including listening to the witnesses testify
and observing their demeanor as they did so, the Court finds there is a lack of
credible evidence to sustain the allegations of the Claim.
Claim Number 106367 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.