New York State Court of Claims

New York State Court of Claims

HOWARD v. THE STATE OF NEW YORK , #2005-030-027, Claim No. 106367


Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
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Claimant's attorney:
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Signature date:
September 27, 2005
White Plains

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See also (multicaptioned case)

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."[1]
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 testimony.

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 searched.

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 day.

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."[
id.]. 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.
Richard Howard, who was 15 years old at the time of this incident, also testified. He said that he came with Claimant on May 11, 2002 to visit his father, Matthew Howard. He was with Claimant when she went into the metal detector area. He saw her go through the metal detector and set it off. He also went through the metal detector and set it off. He saw the correction officer bring Claimant to the bathroom, "and that's all . . . [he] knew from there. She went to the bathroom, then she came out, and she was crying." When the metal detector went off for him, he remembered being instructed to, and taking off, "whatever metal" he was wearing, his shoes, his belt, his pants, while Claimant was in the bathroom. A male correction officer gave him his instructions. Although he did not hear any conversation between Correction Officer Piazza and Claimant prior to Claimant being escorted to the bathroom, he did see Correction Officer Piazza accompany her into the bathroom, and estimated they were in the bathroom for approximately ten minutes. During that period he stood near a bench
outside the bathroom. Officer Piazza came out first. Claimant came out of the bathroom "very upset . . . crying." She did not speak directly to Richard about what happened but spoke to his father in Richard's presence. He also saw her speak with another correction officer, and an "Officer Ray."
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 Harris.

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 brought in."

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 jewelry.

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, 2002. [
See Exhibit 3].
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 . . . " [
id.]. Based upon Sergeant Ray's finding the facility ended the investigation.
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. [
See 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 incident.
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 than heterosexual.[2]

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 disciplined.

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 thereafter renewed.

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 Cohn, 108 Misc 2d 674 (New York Co Sup Ct 1981) see Clayton v Keeler, 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 for him.

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 [
see 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.

September 27, 2005
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] Defense witnesses Darryl Fox, Manuel Tirado, Christopher Casey and Ronald Ray were also asked about Correction Officer Piazza's sexual orientation and testified in a similar vein, but the court does not find either their testimony on this issue or any cross-examination related to it particularly germane to the elements of a claim for battery.